321 F2d 540 United States Morton v. McDonald

321 F.2d 540

UNITED STATES ex rel. Robert MORTON, Relator-Appellant,
v.
Honorable James McDONALD, as Sheriff of Cayuga County Jail, Auburn, New York, Respondent.

No. 398.

Docket 27836.

United States Court of Appeals Second Circuit.

Argued June 17, 1963.

Decided July 29, 1963.

Leon B. Polsky, New York City (Anthony F. Marra, New York City, on the brief), for relator-appellant.

Robert P. Lewis, Asst. County Atty., Cayuga County, Auburn, N. Y. (Paul O'Connor, County Atty., on the brief), for respondent.

Before LUMBARD, Chief Judge, and CLARK and HAYS, Circuit Judges.

LUMBARD, Chief Judge.

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1

Robert Morton appeals from an order of the United States District Court for the Northern District of New York, entered on August 9, 1962, denying, without a hearing, his application for a writ of habeas corpus filed the same day. At that time Morton was parolee in New York and Judge Brennan, relying on Jones v. Cunningham, 294 F.2d 608 (4 Cir. 1962), subsequently reversed 371 U.S. 236, 83 S.Ct. 373, 9 L.Ed.2d 285 (1963), refused to pass on Morton's application on the ground that he was not in custody. Morton's parole time has since expired so that his appeal from Judge Brennan's ruling is moot and it must be dismissed.

2

But as the papers before us show that Morton is now being held by the Cayuga County Sheriff on a warrant of extradition signed by the Governor of New York which would return Morton to Georgia, and as speedy disposition of litigation questioning a writ of extradition is highly desirable, we treat the papers before us as an application to this court for a writ of habeas corpus. As Morton's case is governed by the same principles as those which we have today discussed in our decision in United States ex rel. Tucker v. Donovan, the Warden of the City Prison of the City of New York, Brooklyn, New York, 321 F.2d 114 (2 Cir. 1963), we deny Morton's petition for the writ.

3

Morton is wanted by Georgia to finish the service of a 5 to 10 year sentence imposed by the Superior Court of Fulton County on Morton's plea of guilty to a charge of robbery. After serving about one month of this sentence Morton escaped in April 1957. Morton claims that his plea of guilty was coerced and that he was not afforded his right to counsel. Morton has exhausted his remedies in the New York courts. Following an adverse ruling by the Cayuga County Court the Appellate Division, Fourth Department affirmed, 18 A.D.2d 969 (1963), and leave to appeal to the Court of Appeals was denied 12 N.Y.2d 649, 239 N.Y.S.2d 1026, 190 N.E.2d 28 (1963).

4

For the reasons stated in our opinion in United States ex rel. Tucker v. Donovan, the Warden of the City Prison of the City of New York, Brooklyn, New York, supra, Morton's claim that his Georgia conviction is invalid may not be raised in the asylum state.

5

The appeal is dismissed.

6

Morton's application for a writ of habeas corpus is denied.