United States Ex Rel. Willis E. Smith v. Walter B. Martin, Warden of Attica Prison, 242 F.2d 701, 2d Cir. (1957)
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Scribd Government DocsUnited States Ex Rel. Willis E. Smith v. Walter B. Martin, Warden of Attica Prison, 242 F.2d 701, 2d Cir. (1957)
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Scribd Government Docs242 F.
2d 701
UNITED STATES ex rel. Willis E. SMITH, PetitionerAppellant.
v.
Walter B. MARTIN, Warden of Attica Prison, RespondentAppellee.
No. 49, Docket 24077.
United States Court of Appeals,
Second Circuit.
Submitted Jan. 3, 1957.
Decided Jan. 25, 1957.
Willis E. Smith, pro se.
Before FRANK,1 MEDINA and HINCKS, Circuit Judges.
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 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. mature.
