Application of Buchalter

• Decision Date: 02 March 1944
• Citation: 54 F. Supp. 444
• Parties: Application of BUCHALTER.
• Court: U.S. District Court — Southern District of New York

54 F. Supp. 444

Application of BUCHALTER.

District Court, S. D. New York.

March 1, 1944.

Affirmed March 2, 1944.

James B. M. McNally, U. S. Atty., of New York City, Nathaniel L. Goldstein, Atty. Gen., of New York, and Thomas Craddock Hughes, Dist. Atty., of Brooklyn (Richard J. Burke and Peter J. Donoghue, Asst. U. S. Attys., and William F. McNulty, all of New York City, of counsel), for the Government.

J. Bertram Wegman and I. Maurice Wormser, both of New York City, for petitioner.

Affirmed March 2, 1944. See 141 F.2d 259.

GALSTON, District Judge.

The power of the Court is defined in Title 28, United States Code, Annotated, Section 455, which provides that the Court or Justice or Judge to whom such application is made shall forthwith award a writ of habeas corpus unless it appears from the petition itself that the party is not entitled thereto.

Now, there is a decision reported in the case of Ex parte Zimmerman, 9 Cir., 132 F.2d 442, wherein it is said that the writ ought not to be awarded if the Court upon examination of the petition is satisfied that the petitioner would be remanded to custody. And I cite also the case of Meeks v. Kaiser, 8 Cir., 125 F.2d 826.

Examining the petition for the purpose of determining whether the relator is entitled to the issuance of a writ, as Mr. McNally has stated the essence of the presentation is found in paragraph 8 of the petition, and that reads:

"It appears, therefore, that the Attorney General of the United States without right or authority therefor and without the intervention of a pardon or commutation by the President of the United States has undertaken to terminate the sentence imposed upon your petitioner by this Court and to abandon and give up custody of your petitioner to the authorities of the State of New York for execution of the sentence imposed upon your petitioner in the proceedings in the State courts of the State of New York. Your petitioner urges that the proceedings prior to the trial of your petitioner upon said indictment of murder in the first degree, upon the trial thereof, and subsequent to the trial thereof had been such as to deprive your petitioner of due process of law."

I interpolate the remark that even on the argument of counsel he admitted in answer to the Court's question that there was no constitutional right involved, so I do not understand what right is referred to as having been violated under the term "due process of law" in the 8th paragraph.

I continue the reading of the allegations of the 8th paragraph:

"that your petitioner's present incarceration and imprisonment in a State prison is in derogation of and in violation of your petitioner's lawful rights; that the delivery of the custody of your petitioner by the Attorney General of the United States to the State authorities, not as a Federal prisoner to be held in the custody of the State authorities, but as a State prisoner for the execution of the State sentence, is in excess of the authority granted by law and by the Constitution of the United...