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United States v. Yeager

decided: November 30, 1970.

UNITED STATES OF AMERICA EX REL. RICHARD J. STUART, APPELLANT,
v.
H. YEAGER, PRINCIPAL KEEPER, NEW JERSEY STATE PRISON



McLaughlin, Freedman and Van Dusen, Circuit Judges.

Author: Per Curiam

Opinion OF THE COURT

This case challenges a District Court order denying a petition for a writ of habeas corpus filed on October 28, 1969. The petition was denied on the ground that it attacked (par. 5 of the petition) a sentence of one year imposed by the New York Supreme Court on August 10, 1964, which had been served*fn1 prior to the imposition of the sentence of July 29, 1965, by the Passaic County, New Jersey, criminal court under which relator was confined on October 28, 1969.*fn2 The District Court correctly pointed out in its opinion that 28 U.S.C. ยง 2254(a) gives the federal courts jurisdiction of "an application for a writ of habeas corpus in behalf of a person in custody pursuant to the judgment of a State court only on the ground that he is in custody in violation of the Constitution or laws * * * of the United States" (emphasis supplied). Relator does not allege that he is now or was on October 28, 1969, "in custody in violation of the Constitution or laws" of the United States but that he was in such custody prior to July 1965. See Carafas v. LaVallee, 391 U.S. 234, 238, 88 S. Ct. 1556, 20 L. Ed. 2d 554 (1968).

The order of the District Court will be affirmed.

FREEDMAN, Circuit Judge, deeming the facts too obscure to warrant a determination of the effect of New Jersey Rule 3:7-10(h), nevertheless concurs in the affirmance of the order of the District Court because it appears that appellant has ...


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