United States v. Tuttle, 20360.

• Decision Date: 16 July 1930
• Docket Number: No. 20360.,20360.
• Citation: 46 F.2d 342
• Parties: UNITED STATES ex rel. MILLARD v. TUTTLE, Commissioner of Immigration.
• Court: U.S. District Court — Eastern District of Louisiana

46 F.2d 342 (1930)

UNITED STATES ex rel. MILLARD v. TUTTLE, Commissioner of Immigration.

No. 20360.

District Court, E. D. Louisiana, New Orleans Division.

July 16, 1930.

Max M. Schaumburger, of New Orleans, La., for relator.

E. E. Talbot, U. S. Atty., of New Orleans, La., for respondent.

DAWKINS, District Judge.

Petitioner seeks, by writ of habeas corpus, to be discharged from custody under a warrant of deportation, issued by the Department of Immigration. The warrant, dated December 8, 1927, charged that the relator had been convicted of a crime involving moral turpitude, committed within five years after his entry into the United States. He was not apprehended until recently in the city of New Orleans. His petition alleges that the Department erred as a matter of law in the following respects: (1) In not finding that prescription or limitations had run before the charge was filed in the state court, and therefore that the proceedings were null and void; (2) in not holding that the said offense could not support his deportation because it was "not judicially determined or established until more than five years after his entry," December 9, 1918, the bill of information having been filed on April 19, 1924; (3) in not finding that the offense which charged him with incumbering mortgaged property under the laws of California did not involve moral turpitude, as required by the Immigration Act of Feb. 5, 1917.

1. As to the contention that the offense for which petitioner was prosecuted under the state law had prescribed, I do not think this is an issue which this court can consider in a habeas corpus proceeding. The writ, as has often been said, cannot serve the purposes of an appeal or review, and the plea of limitations being one which the petitioner could have urged in his trial, or on motion in arrest of judgment, was waived by the plea of guilty which the record shows he entered. No authority has been cited and I know of none which supports the assertion that the whole proceeding in the state court was rendered null and void by the mere expiration of the prescriptive period under the state law.

2. In support of the second proposition, counsel cites the case of Hughes v. Tropello, 296 F. 306, 309, in which the Court of Appeals for the Third Circuit used some language indicating that the alien should not only have committed the offense, but that he must have been convicted and sentenced within five years after his entry in order to be deported under section 19 of the Act of Feb. 5, 1917 (U. S. Code, title 8, § 155 8 USCA § 155). However, in that case, the alien arrived in the United States on November 12, 1915, and after examination was ordered deported "on the ground that he was feeble minded and likely to become a public charge," but was later permitted to enter, upon giving bond. On April 19, 1919, a warrant of arrest was issued and he was taken into custody on the charge that he was in the United States in violation of the Immigration Act of 1917, for the same reason; that is, he was feeble minded at the time of his entry and likely to become a public charge. The final order of deportation was not issued until April 5, 1921. It was held that inasmuch as the order had not been entered within five years after entry "the power of deportation was exhausted. * * *" The court took occasion to analyze the various sections of the statute as well as the clauses of section 19, and although unnecessary because no such issue was involved, in discussing the clause authorizing deportation of an alien sentenced to imprisonment for a term of one year or more because of conviction in this country of a crime involving moral turpitude, committed within five years after the entry of the alien to the United States, said:

"Not only so, but the fact, the offense which is the sole foundation of the right of deportation, must be established by some proceeding, not only commenced, but concluded (that is, found to exist), within the period of five years after entry."

This conclusion appears to have been based upon the proposition that section 19 of the act, as quoted by that court, says:

"`That at any time within five years after entry, any alien (specifying the various classes unlawfully entering or found in the United States) shall, upon a warrant of the Secretary of Labor, be taken into custody and deported.'"

However, in my judgment, with all due respect, the section in question cannot be treated in any such fashion for the reason that between the opening clause, "That at any time within five years after entry, any alien," etc., and the concluding command, "shall, upon a warrant of the Secretary of Labor, be taken into custody and deported," there are a number of clauses which clearly provide different periods of limitations and others which are without limitation. For instance, the very clause...