376 F2d 847 Ward v. State of Oklahoma
376 F.2d 847
Arley WARD, Appellant,
STATE OF OKLAHOMA, Appellee.
United States Court of Appeals Tenth Circuit.
May 4, 1967.
Louis A. Morrone, Englewood, Colo., for appellant.
Charles L. Owens, Asst. Atty. Gen., of Oklahoma, (G. T. Blankenship, Atty. Gen., with him on the brief), for appellee.
Before PICKETT and SETH, Circuit Judges, and CHRISTENSEN, District Judge.
In 1965, Ward was convicted in the District Court of Tulsa County, Oklahoma, of the crime of murder in the first degree, and sentenced to life imprisonment. This conviction is presently pending on appeal in the Oklahoma Criminal Court of Appeals. Ward, now in custody of the Warden of the Oklahoma State Penitentiary, instituted this habeas corpus proceeding seeking an order declaring a 1934 judgment and sentence for armed robbery to be null and void. It is alleged that the 1934 conviction was prejudicially used by the prosecution to secure Ward's conviction for murder in 1965. The trial court dismissed the habeas corpus proceeding without a hearing.
It is conceded that the 1934 sentence has been served and that Ward's detention is under the 1965 life sentence. Habeas corpus is available only to a prisoner who is in custody pursuant to the court judgment which is challenged by the proceedings. 28 U.S.C. § 2254. Parker v. Ellis, 362 U.S. 574, 80 S.Ct. 909, 4 L.Ed.2d 963; United States ex rel. McDonald v. Commonwealth of Pennsylvania, 3 Cir., 343 F.2d 447; Douglas v. Green, 6 Cir., 333 F.2d 73, cert. denied 379 U.S. 862, 85 S.Ct. 126, 13 L.Ed.2d 66; United States v. Bradford, 2 Cir., 194 F.2d 197, cert. denied 343 U.S. 979, 72 S.Ct. 1079, 96 L.Ed. 1371. If Ward's 1934 conviction was prejudicially used in the 1965 murder trial, it is an error to be reviewed on appeal, and not by habeas corpus.