OpenJurist

237 F2d 336 Samet v. H C McLeod

237 F.2d 336

William Peter SAMET, Appellant,

v.

H. C. McLEOD, Warden, Oklahoma State Penitentiary, Appellee.

No. 5398.

United States Court of Appeals Tenth Circuit.

Sept. 28, 1956.

No appearance for appellant.

James C. Harkins, Oklahoma City, Okl., for appellee.

Before HUXMAN, MURRAH and PICKETT, Circuit Judges.

PER CURIAM.

1

While the appellant was serving a valid sentence in the Oklahoma State Penitentiary, he was, by order of the Governor of that State, paroled to the custody of the New york parole authorities for return to imprisonment in that State. Upon release from custody in New York, his Oklahoma parole was revoked and he was returned to the Oklahoma State Penitentiary to serve the unexpired sentence.

2

On writ of habeas corpus to the Criminal Court of Appeals of the State of Oklahoma, appellant contended that the parole to the New York authorities was in legal effect a pardon or commutation of sentence, and that he was not therefore subject to the jurisdiction of the Oklahoma authorities. The Criminal Court of Appeals denied the writ, holding that the release did not amount to a pardon, but was only a conditional parole which was duly and properly revoked; and that he was therefore lawfully committed to the Oklahoma State Penitentiary to serve the unexpired sentence.

3

Withour applying to the Supreme Court of the United States for certiorari to the state court, appellant made this application for a writ in the federal court of the district where he is presently confined.

4

After observing failure to apply to the Supreme Court for certiorari, the trial court stated that the application for the writ challenged only the state court's construction of the instrument of his release to the custody of the New York authorities.

5

Accepting the state court's interpretation of its own instrument, the federal district court rightfully discharged the writ. The judgment is affirmed.