Wright v. Johnston, 23793.
Decision Date | 08 March 1943 |
Docket Number | No. 23793.,23793. |
Citation | 49 F. Supp. 748 |
Court | U.S. District Court — Northern District of California |
Parties | WRIGHT v. JOHNSTON. |
Cecil Wright, in pro. per.
Wright's petition for writ of habeas corpus was addressed to the Honorable Michael J. Roche, one of the Judges of this court. The petitioner accompanied the petition with a letter in which he stated: "this petition is not addressed to the Court but to your Honor as a district Judge." The petition was filed with the clerk, and, in accordance with the rules of the court, was assigned, and, by lot, fell to me. I have conferred with Judge Roche and he has advised me that he authorized the filing of the petition with the clerk so that it would receive the attention of the court in due course. I must first decide whether the court may properly hear and determine this petition or whether it is mandatory for Judge Roche, as an individual Judge, to pass upon it. The pertinent statutory provisions are:
28 U.S.C.A. § 452:
Section 454:
Section 455:
Rule 1 of the Rules of practice of this Court provides as follows: (Emphasis is supplied.)
It is true that under 28 U.S.C.A. § 452, the several Judges of this court are empowered to grant writs of habeas corpus. It does not follow, however, that it is mandatory upon the judge, to whom a petition for writ of habeas corpus is addressed, to pass upon such petition; or that the petition may not be heard and determined by the court, when assigned according to its rules, to a judge thereof.
The history of the statute (i. e. 28 U.S.C.A. § 452) indicates that the empowerment of the District Judges individually to receive and act upon such petitions was not for the purpose of enabling a petitioner to "pick" his judge, that is, to select a judge whom he might consider more favorably disposed to his cause than other judges of the same court equally available. By the predecessor statute, R.S. § 752, originally derived from 1 Stat. 81, judges of the several federal courts were granted power individually to award writs of habeas corpus only during vacation. See State v. Sullivan, C.C., 50 F. 593.
Justice required that the detained person should not be compelled to await a regular session of the court, which might be a long time distant and removed from the place of imprisonment....
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Bernard v. Warden Of Md. House Of Correction.
...and that the right of appeal prevents any injustice to the petitioner. Burall v. Johnston, 9 Cir., 146 F.2d 230, citing Wright v. Johnston, D.C., 49 F.Supp. 748, 749. See also the comment on these cases in 44 Mich.L.R. 305. It has also been held in the Federal courts that although the appel......
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Bernard v. Warden of Md. House of Correction
... ... injustice to the petitioner. Burall v. Johnston, 9 ... Cir., 146 F.2d 230, citing Wright v. Johnston, ... D.C., 49 F.Supp. 748, 749. See also the ... ...
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Burall v. Johnston
...file the petition and under Rule I of the Rules of Practice of this court it was assigned to me for hearing and decision. Wright v. Johnston, D. C., 49 F.Supp. 748. Notwithstanding the established practice of this Court, which has obtained many years and is found convenient for the dispatch......
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Rutkowski v. St. Sure, 10638.
...aside and direct counsel to more thoroughly explore the history of the writ with its bearing upon the point. But see Wright v. Johnston, D.C., 49 F. Supp. 748; Rutkowski v. Johnston, D. C., 52 F.Supp. 430; Burall v. Johnston, D.C., 53 F.Supp. 3 See statement and authorities on analogous sub......