United States Ex Rel. Willis E. Smith v. Walter B. Martin, Warden of Attica Prison

Second Circuit

United States Ex Rel. Willis E. Smith v. Walter B. Martin, Warden of Attica Prison

242 F.2d 701, 1957 U.S. App. LEXIS 2846

CourtCourt of Appeals for the Second Circuit

DecidedJanuary 25, 1957

Docket49, Docket 24077

StatusPublished

Cited by16 cases

This text of 242 F.2d 701 (United States Ex Rel. Willis E. Smith v. Walter B. Martin, Warden of Attica Prison) is published on Counsel Stack Legal Research, covering Court of Appeals for the Second Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

United States Ex Rel. Willis E. Smith v. Walter B. Martin, Warden of Attica Prison, 242 F.2d 701, 1957 U.S. App. LEXIS 2846 (2d Cir. 1957).

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Opinion

PER CURIAM.

Relator overlooks the fact, stated in our original opinion, that even if one of his prior convictions were set aside, and he were resentenced as a second rather than a third felony offender, the minimum period to which the judge could sentence him under New York Penal Law, McKinney’s Consol.Laws, c. 40, § 1941, would be five years, which would expire in 1958.

Relator appears correct in his contention that the state courts in New York regard habeas corpus as an appropriate remedy to one sentenced as a third or fourth felony offender when he was in fact only a second or third offender, even though the minimum period to which he should properly be sentenced, has not expired. See People ex rel. Stevens v. Jackson, 283 App.Div. 3, 125 N.Y.S.2d 905. This is on the theory that the court lacks jurisdiction to impose sentence for a third felony offense, where the defendant was in fact only a second felony offender, even though the minimum period of confinement is the same in both cases, Id., 125 N.Y.S. 2d at page 910.

The federal writ of habeas corpus, however, can issue only to release a prisoner from custody, or to order a resentencing where it is possible that on resentence he will be sentenced to no more than the period he had already served. That is not the case here; and a federal court cannot use the writ of habeas corpus as a means of giving a declaratory judgment as to a prisoner’s future rights. McNally v. Hill, 293 U.S. 131, 138-139, 55 S.Ct. 24, 79 L.Ed. 238; Holiday v. Johnston, 313 *702 U.S. 342, 349, 61 S.Ct. 1015, 85 L.Ed. 1392.

Accordingly, since under petitioner’s own allegations, the minimum term of which he would have to be sentenced does not expire until June 1958, his application for the federal writ is premature.

Motion to recall mandate and to file a petition for rehearing denied.

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PER CURIAM.

Relator overlooks the fact, stated in our original opinion, that even if one of his prior convictions were set aside, and he were resentenced as a second rather than a third felony offender, the minimum period to which the judge could sentence him under New York Penal Law, McKinney’s Consol.Laws, c. 40, § 1941, would be five years, which would expire in 1958.

Relator appears correct in his contention that the state courts in New York regard habeas corpus as an appropriate remedy to one sentenced as a third or fourth felony offender when he was in fact only a second or third offender, even though the minimum period to which he should properly be sentenced, has not expired. See People ex rel. Stevens v. Jackson, 283 App.Div. 3, 125 N.Y.S.2d 905. This is on the theory that the court lacks jurisdiction to impose sentence for a third felony offense, where the defendant was in fact only a second felony offender, even though the minimum period of confinement is the same in both cases, Id., 125 N.Y.S. 2d at page 910.

The federal writ of habeas corpus, however, can issue only to release a prisoner from custody, or to order a resentencing where it is possible that on resentence he will be sentenced to no more than the period he had already served. That is not the case here; and a federal court cannot use the writ of habeas corpus as a means of giving a declaratory judgment as to a prisoner’s future rights. McNally v. Hill, 293 U.S. 131, 138-139, 55 S.Ct. 24, 79 L.Ed. 238; Holiday v. Johnston, 313 *702 U.S. 342, 349, 61 S.Ct. 1015, 85 L.Ed. 1392.

Accordingly, since under petitioner’s own allegations, the minimum term of which he would have to be sentenced does not expire until June 1958, his application for the federal writ is premature.

Motion to recall mandate and to file a petition for rehearing denied.

United States of America Ex Rel. Raymond Durocher, Relator-Appellant v. J. E. Lavallee, Warden, Clinton State Prison, Dannemora, N. Y., United States of America Ex Rel., James Jesse Brown, Relator-Appellant v. Robert E. Murphy, Warden, Auburn Prison, Auburn, N. Y., United States of America Ex Rel. Marion Ripple, Relator-Appellant v. Robert E. Murphy, Warden, Auburn Prison, Auburn, N. Y., United States of America Ex Rel. William H. Moore, Relator-Appellant v. Robert E. Murphy, Warden, Auburn Prison, Auburn, N. Y.

330 F.2d 303 (Second Circuit, 1964)

United States Ex Rel. Brown v. Warden, Green Haven Prison

231 F. Supp. 179 (S.D. New York, 1964)

Goodman v. State

393 P.2d 148 (Arizona Supreme Court, 1964)

United States ex rel. Santaromita v. New York State Parole Board

229 F. Supp. 117 (S.D. New York, 1964)

United States ex rel. Durocher v. LaVallee

330 F.2d 303 (Second Circuit, 1964)

United States ex rel. Lawrence v. Fay

222 F. Supp. 604 (S.D. New York, 1963)

United States Ex Rel. Foreman v. Fay

184 F. Supp. 535 (S.D. New York, 1960)

United States Ex Rel. Lynch v. Fay

184 F. Supp. 277 (S.D. New York, 1960)

United States ex rel. Hadley v. Murphy

177 F. Supp. 788 (N.D. New York, 1959)

United States of America, Ex Rel. Jack Rogers Stokes, Relator-Petitioner v. Honorable Robert E. Murphy, Warden, Auburn State Prison, Auburn, N.Y.

242 F.2d 706 (Second Circuit, 1957)

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242 F.2d 701, 1957 U.S. App. LEXIS 2846, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-ex-rel-willis-e-smith-v-walter-b-martin-warden-of-attica-ca2-1957.

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