252 F2d 560 United States Ortega v. J La Buy L J

252 F.2d 560

UNITED STATES of America, ex rel. Joseph ORTEGA, Petitioner,
v.
Walter J. LA BUY, Philip L. Sullivan and Julius J. Hoffman,
Judges of the United States District Court for the
Northern District of Illinois, Eastern
Division, Respondents.

No. 12173.

United States Court of Appeals Seventh Circuit.

Feb. 18, 1958, Writ of Certiorari Granted May 19, 1958, See
78 S.Ct. 1001.

Joseph Ortega, in pro. per.

Robert Tieken, U.S. Atty., John Peter Lulinski, Asst. U.S. Atty., Chicago, Ill., for respondent.

Before HASTINGS and PARKINSON, Circuit Judges, and WHAM, District judge.

PER CURIAM.

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1

On November 8, 1957, this court granted leave for petitioner, Joseph Ortega, to file and prosecute his petition for writ of mandamus in forma pauperis, and such petition was so filed. On the same date we ordered that respondents, Walter J. La Buy, Philip L. Sullivan and Julius J. Hoffman, Judges of the United States District Court for the Northern District of Illinois, Eastern Division, show cause, if any, why a writ of mandamus should not issue as prayed for herein.

2

On November 22, 1957, respondents, Walter J. La Buy and Philip L. Sullivan, each filed his return and answer alleging therein that neither of them had jurisdiction of the cause below, the same having been regularly assigned to respondent, Julius J. Hoffman, who on November 12, 1957, in a memorandum opinion entered a final and appealable order dismissing the said cause. Application of Ortega, 158 F.Supp. 946.

3

On November 22, 1957, respondent, Julius J. Hoffman, filed his return and answer alleging therein that the petition failed to state a claim upon which relief could be granted, that the question of the hearing on the petition for habeas corpus filed below was moot since such hearing had been held and a final appealable order had been entered and that petitioner had a full, complete and adequate remedy by way of appeal from the final order dismissing his petition below entered on November 12, 1957.

4

It now appearing to this court that the petition for writ of mandamus seeks an order of this court directing respondents to grant petitioner a hearing on his petition below for a writ of habeas corpus, and it further appearing from the returns and answers of respondents filed herein that said cause was assigned to the respondent, Julius J. Hoffman, who on November 12, 1957, in a memorandum opinion entered a final and appealable order dismissing the same, and it further appearing in the traverse to the returns filed on December 19, 1957 that petitioner admits that such order was entered by said respondent on November 12, 1957, it is now ordered by this court that respondents be discharged from the rule to show cause herein, and that the petition for writ of mandamus be dismissed.