1. A prisoner who had been convicted and sentenced on three
counts of an indictment, the sentence on the first count running
concurrently with that on the second, and the sentence on the
second and third counts running consecutively, petitioned for a
writ of habeas corpus, asserting the invalidity of the conviction
and sentence on the third count, and assigning as reason for the
granting of the writ that consideration by the Parole Board of any
application for a parole was precluded as a result of the void
sentence. It was conceded that the sentence on the second count,
the validity of which was not challenged, had not expired, and that
service of sentence on the third had not yet begun.
Held
that, as the detention under the sentence on the second count was
lawful, the writ of habeas corpus could not be used to inquire into
the validity of the conviction under the third count. P.
293 U. S.
135.
2. The meaning of the term habeas corpus and the appropriate use
of the writ in the federal courts must be ascertained by reference
to
Page 293 U. S. 132
the common law and to the decisions of this Court interpreting
and applying the common law principles which define its use when
authorized by the statute. P.
293 U. S.
136.
3. The Habeas Corpus Act of 1679, 31 Car. II, c. 2, and the
decisions of the English courts interpreting it have been accepted
by this Court as authoritative guides in defining the principles
which control the use of the writ in the federal courts. P.
293 U. S.
136.
4. The writ of habeas corpus may not be used in the federal
courts as a means of securing the judicial decision of a question
which, even if determined in the prisoner's favor, could not result
in his immediate release. P.
293 U. S.
136.
5. A sentence which the prisoner has not begun to serve cannot
be the cause of restraint which the statute makes subject to
judicial inquiry. P.
293 U. S.
137.
6. This Court has consistently refused, wherever the issue has
been presented, to review upon habeas corpus questions which do not
concern the lawfulness of the detention. P.
293 U. S.
139.
69 F.2d 38 affirmed.
Certiorari, 292 U.S. 619, to review a judgment affirming a
judgment dismissing a petition for a writ of habeas corpus.
Page 293 U. S. 133
MR. JUSTICE STONE delivered the opinion of the Court.
Certiorari, 292 U.S. 619, brings this case here for review of a
judgment of the Circuit Court of Appeals directing dismissal, on
the merits, of a petition for a writ of habeas corpus. Petitioner
was convicted and sentenced to be imprisoned upon two indictments
framed under the Conspiracy Act of May 17, 1879, c. 8, 21 Stat. 4,
as amended by Act of March 4, 1909, c. 321, § 37, 35 Stat. 1088,
1096, U.S.C. Title 18, § 88, and the National Motor Vehicle Theft
Act of October 29, 1919, c. 89, 41 Stat. 324, 325, U.S.C. Title 18,
§ 408. The indictment which alone need be considered here was in
three counts: the first charged petitioner and others with
conspiracy to violate the provisions of the Motor Vehicle Theft
Act; the second, the interstate transportation of a stolen motor
vehicle, and the third, which is assailed here, the violation of §
4 of the Motor Vehicle Theft Act by the sale in New Jersey of a
motor vehicle which had been stolen in New York, "knowing that the
vehicle had been so stolen and transported in interstate commerce."
Petitioner was sentenced for a term of two years on the first count
and for terms of four years each on the second and third counts,
the sentence on the first to run concurrently with that on the
second, the sentence on the second and third to run consecutively.
Service of sentence was begun on November 30, 1931. It is conceded
that the
Page 293 U. S. 134
sentence on the second count, less allowances for good behavior,
has not expired, and that service of sentence on the third has not
yet begun.
On April 6, 1933, the petitioner filed his petition for writ of
habeas corpus in the District Court for the Middle district of
Pennsylvania. He assailed the conviction and sentence on the third
count as void. No attack was made on the conviction and sentence on
the other counts, but the petition advanced as reasons for granting
the writ that, under the Parole Act of June 25, 1910, c. 387, § 1,
36 Stat. 819, as amended by the Act of January 23, 1913, c. 9, 37
Stat. 650, U.S.C. Tit. 18, § 714, petitioner was eligible to apply
for parole, to be granted, in the discretion of the parole board,
after serving one-third of his sentence; that he had served
one-third or more of the valid sentence on the first and second
counts, but less than one-third of the total period of imprisonment
to which he had been sentenced on the three counts, and that
consideration by the parole board of any application for his parole
was precluded by reason of the outstanding, but void, sentence on
the third count.
Numerous objections to the validity of the conviction was
sentence under the third count were urged either in the District
Court or the Circuit Court of Appeals. The only one considered by
the Circuit Court of Appeals was that the third count was void
because it failed to charge the petitioner, in conformity to the
words of § 4 of the statute, with having sold a stolen motor
vehicle "moving as, or which is a part of, or which constitutes
interstate or foreign commerce," but had charged him instead with
knowingly selling a stolen motor vehicle which "had theretofore
been transported in interstate commerce;" that it had thus failed
to charge an offense against the United States since it appeared
that the motor vehicle at the time of the sale, had ceased to be
the subject of interstate commerce.
Page 293 U. S. 135
The Circuit Court of Appeals did not consider whether the writ
of habeas corpus could rightly be used to test the validity of the
sentence on the third count, while the petitioner was in lawful
custody under the sentence on the second, or whether the writ was
improperly used as an attempted substitute for an appeal from the
judgment of conviction. It contented itself with passing upon the
sufficiency of the indictment, and held that the act of sale
charged was so closely related to the interstate transportation of
the motor vehicle as to constitute the federal offense defined by
the statute. It accordingly treated the alleged defects in the
indictment as no more than formal, and affirmed the order of the
District Court dismissing the petition. 69 F.2d 38.
We find it unnecessary to consider the questions raised or
decided below, which the petitioner presses here. We conclude that,
as it appears from the petition that the detention of petitioner is
lawful under the sentence on the second count, there is no
occasion, in a habeas corpus proceeding, for inquiry into the
validity of his conviction under the third.
The use of the writ of habeas corpus as an incident of the
federal judicial power is implicitly recognized by Article I, § 9,
cl. 2, of the Constitution, which provides:
"The Privilege of the Writ of Habeas Corpus shall not be
suspend, unless when in cases of Rebellion or Invasion the public
Safety may require it."
The Justices of this Court and judges of the district courts
were expressly given power to issue the writ by § 14 of the
Judiciary Act of September 24, 1789, 1 Stat. 73, 81, 82, now
embodied, with additions, in Chapter 14, Title 28, U.S.C.. Under
the statute in its present form, the writ may issue "for the
purpose of an inquiry into the cause of restraint of liberty," but
with the proviso that it
"shall in no case extend to a prisoner in jail unless where he
is in custody under or by color of the authority of the United
States
Page 293 U. S. 136
. . . or is in custody for an act done or omitted in pursuance
of a law of the United States; . . . or is in custody in violation
of the Constitution or of a law or treaty of the United
States."
Sections 451, 452, 453, Title 28, U.S.C.
The statute does not define the term habeas corpus. To ascertain
its meaning and the appropriate use of the writ in the federal
courts, recourse must be had to the common law, from which the term
was drawn, and to the decisions of this Court interpreting and
applying the common law principles which define its use when
authorized by the statute.
Ex parte
Bollman, 4 Cranch 75,
8 U. S. 93-94;
Ex parte
Kearney, 7 Wheat. 38;
Ex parte
Watkins, 3 Pet.193,
28 U. S.
201-202;
Ex parte
Yerger, 8 Wall. 85,
75 U. S. 95;
Ex parte Parks, 93 U. S. 18,
93 U. S. 21-22;
Ex parte Siebold, 100 U. S. 371,
100 U. S. 375;
Crowley v. Christensen, 137 U. S. 86,
137 U. S. 94;
see Whitney v. Dick, 202 U. S. 132;
Craig v. Hecht, 263 U. S. 255.
Originating as a writ by which the superior courts of the common
law and the chancellor sought to extend their jurisdiction at the
expense of inferior or rival courts, it ultimately took form and
survived as the writ of habeas corpus
ad subjiciendum, by
which the legality of the detention of one in the custody of
another could be tested judicially.
See Holdsworth,
History of the English Law, vol. 9, 108-125. Its use was defined
and regulated by the Habeas Corpus Act of 1679, 31 Car. II, c. 2.
This legislation and the decisions of the English courts
interpreting it have been accepted by this Court as authoritative
guides in defining the principles which control the use of the writ
in the federal courts.
See Ex parte Watkins, supra,
28 U. S. 202;
Ex parte Yerger, supra, 75 U. S. 95;
Ex parte Parks, supra, 93 U. S.
21-22.
The purpose of the proceeding defined by the statute was to
inquire into the legality of the detention, and the only judicial
relief authorized was the discharge of the prisoner or his
admission to bail, and that only if his
Page 293 U. S. 137
detention were found to be unlawful. [
Footnote 1] In this, the statute conformed to the
traditional form of the writ, which put in issue only the
disposition of the custody of the prisoner according to law.
[
Footnote 2] There is no
warrant in either the statute or the writ for its use to invoke
judicial determination of questions which could not affect the
lawfulness of the custody and detention, and no suggestion of such
a use has been found in the commentaries on the English common law.
[
Footnote 3] Diligent search of
the English authorities
Page 293 U. S. 138
and the digests before 1789 has failed to disclose any case
where the writ was sought or used, either before or after
conviction, as a means of securing the judicial decision of any
question which, even if determined in the prisoner's favor, could
not have resulted in his immediate release. [
Footnote 4]
Such use of the writ in the federal courts is without the
support of history or of any language in the statutes which would
indicate a purpose to enlarge its traditional function. Section 14
of the Judiciary Act, by the language already quoted, was at pains
to declare that the writ might issue for the purpose of inquiring
into the cause of restraint of liberty. Without restraint of
liberty, the writ will not issue.
Wales v. Whitney,
114 U. S. 564;
Stallings v. Splain, 253 U. S. 339,
253 U. S. 343.
Equally, without restraint which is unlawful, the writ may not be
used. A sentence which the prisoner has not begun to serve cannot
be the cause of restraint which the statute makes the subject of
inquiry.
Considerations which have led this Court to hold that habeas
corpus may not be used as a writ of error to correct an erroneous
judgment of conviction of crime, but may be resorted to only where
the judgment is void because the court was without jurisdiction to
render it,
Ex Parte Watkins, supra, 28 U. S. 203;
Knewel v. Egan, 268 U. S. 442,
268 U. S. 445,
268 U. S. 447,
lead to the like conclusion where the prisoner is
Page 293 U. S. 139
lawfully detained under a sentence which is invalid in part.
Habeas corpus may not be used to modify or revise the judgment of
conviction.
Harian v. McGourin, 218 U.
S. 442;
United States v. Pridgeon, 153 U. S.
48,
153 U. S. 63.
Even when void, its operation may be stayed by habeas corpus only
through the exercise of the authority of the court to remove the
prisoner from custody. That authority cannot be exercised where the
custody is lawful.
Wherever the issue has been presented, this Court has
consistently refused to review, upon habeas corpus, questions which
do not concern the lawfulness of the detention. [
Footnote 5]
In re Graham,
138 U. S. 461;
In re Swan, 150 U. S. 637,
150 U. S. 653;
Harlan v. McGourin, supra; United States v. Pridgeon, supra;
Nishimura Ekiu v. United States, 142 U.
S. 651;
Iasigi v. Van der Carr, 166 U.
S. 391;
Hale v. Henkel, 201 U. S.
43,
201 U. S. 77;
Ex parte Wilson, 114 U. S. 417,
114 U. S. 421.
The lower federal courts have generally denied petitions for the
writ where the prisoner was at the time serving a part of his
sentence not assailed as invalid. [
Footnote 6]
Page 293 U. S. 140
The petitioner asks here only a ruling which will establish his
eligibility for parole because of the invalidity of the sentence on
the third count. The ruling sought is such as might be obtained in
a proceeding brought to mandamus the parole board to entertain his
petition for parole, if the sentence on the third count were void
for want of jurisdiction of the court to pronounce it. This use of
habeas corpus is unauthorized by the statutes of the United States,
and, for that reason, the judgment must be
Affirmed.
[
Footnote 1]
The Habeas Corpus Act appears from its preamble to have been
especially, although not exclusively, directed at cases in which
the King's subjects were detained in custody upon a criminal charge
where by law they were entitled to bail. It authorized the writ to
issue, directed to any sheriff or gaoler, or other person "for any
person in his or their custody." It commanded the production of the
prisoner before the judicial officer to whom the writ was to be
returned, and directed that such officer "shall discharge" the
"prisoner from his imprisonment" with provision for taking bail in
his discretion, "unless it shall appear" to him that the petitioner
"is detained upon a legal process, order or warrant out of some
court that hath jurisdiction of criminal matters" or upon warrant
for an offense "for which by law the prisoner is not bailable." 31
Car. II, § II(2), § III(6), (7).
[
Footnote 2]
The writ, in its historic form, like that now in use in the
federal courts, was directed to the disposition of the custody of
the prisoner. It commanded the officer to "have the body" of him
"detained in our prison under your custody," "together with the day
and cause of his being taken and detained," before the judge at a
specified time and place "to do and receive all and singular those
things which our said chief justice shall then and there consider
of him in this behalf." Richardson, The Attorney's Practice in the
Court of Kings Bench, vol. 1, p. 369. Numerous writs, in
substantially the same form, used between 5 Edw. IV and James II,
are collected in Tremaine, Pleas of the Crown, 351-435. The
earliest of these is reprinted in Coke's Second Institutes, 53.
And see Hurd, Habeas Corpus, 232-233.
[
Footnote 3]
Bacon, in his Abridgment, 425, declared the writ "is the most
usual remedy by which a man is restored to his liberty if he hath
by law been deprived of it." And Hale said that it was designed "to
remove or avoid the imprisonment." Analysis of the Law, 78;
see
also Pleas of the Crown, 143.
And see Coke, Second
Institutes, 52, 53; Comyns, Digest of the Laws of England, 454;
Blackstone, Commentaries, vol. 1, 129-137.
[
Footnote 4]
The Court of Kings Bench, in
Rex v. Clarkson, 1 Stra.
444, in refusing to order the release of a woman content to remain
with her guardian, said: "We have nothing to do . . . but only to
see that she is under no illegal restraint."
See Brass Crosby's
Case, 3 Wils. 189, 198.
"This is a writ by which the subject has a right of remedy to be
discharged out of custody, if he hath been committed and is
detained contrary to law."
[
Footnote 5]
In
Morgan v. Devine, 237 U. S. 632,
237 U. S. 637,
the writ was denied on the merits and in
Ex parte Spencer,
228 U. S. 652,
petition for the writ was denied because sought to be used as a
substitute for a writ of error, although in each case the
petitioner had not served an admittedly valid part of his sentence.
In neither case did the opinion discuss the question whether the
application was premature.
[
Footnote 6]
The Courts of Appeals in circuits other than the eighth have
uniformly denied petitions for writs of habeas corpus when the
prisoner was not at that time serving the part of the sentence said
to be invalid.
Carter v. Snook, 28 F.2d 609;
Eori v.
Aderhold, 53 F.2d 840, 841;
De Bara v. United States,
99 F. 942;
United States v. Carpenter, 151 F. 214;
Mabry v. Beaumont, 290 F. 205, 206;
Dodd v. Peak,
60 App.D.C. 68, 47 F.2d 430, 431. And to the like effect,
see
Woodward v. Bridges, 144 F. 156;
Ex parte Davis, 112
F. 139. This was the view of the Court of Appeals for the Eighth
Circuit in
Connella v. Haskell, 158 F. 285, 289. But, in
O'Brien v. McClaughry, 209 F. 816, 820, 821, that court,
in order that the prisoner might apply for parole for the valid
part of his sentence, remanded the prisoner with directions to the
District Court to discharge the prisoner from custody with respect
to the invalid sentence, but to remand him to custody upon the
valid sentence. This procedure was followed by the same court in
Cahill v. Biddle, 13 F.2d 827, 828, 829.
But see
Morgan v. Sylvester, 231 F. 886, 887;
Hostetter v. United
States, 16 F.2d 921, 923, and
Schultz v. Biddle, 19
F.2d 478, 480, in the same court.
In
Colson v. Aderhold, 5 F. Supp. 111, the District
Court for Northern Georgia entertained a writ of habeas corpus,
reduced the sentence from fifty to thirty-five years, and remanded
him for custody to serve the valid part of his sentence.