United States v. Martin

• Decision Date: 25 January 1957
• Docket Number: No. 49,Docket 24077.,49
• Citation: United States v. Martin, 242 F.2d 701 (2nd Cir. 1957)
• Parties: UNITED STATES ex rel. Willis E. SMITH, Petitioner-Appellant. v. Walter B. MARTIN, Warden of Attica Prison, Respondent-Appellee.
• Court: U.S. Court of Appeals — Second Circuit

242 F.2d 701 (1957)

UNITED STATES ex rel. Willis E. SMITH, Petitioner-Appellant. v. Walter B. MARTIN, Warden of Attica Prison, Respondent-Appellee.

No. 49, Docket 24077.

United States Court of Appeals Second Circuit.

Submitted January 3, 1957.

Decided January 25, 1957.

Willis E. Smith, pro se.

Before FRANK,^* 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...