394 F2d 619 United States Miller v. N Myers

394 F.2d 619

UNITED STATES of America ex rel. Michael MILLER, Appellant,
v.
David N. MYERS, Superintendent.

No. 16171.

United States Court of Appeals Third Circuit.

Submitted on Briefs April 19, 1968.

Decided May 6, 1968.

Michael Miller, pro se.

Richard A. Devlin, Asst. Dist. Atty., Norristown, Pa. (Henry T. Crocker, Asst. Dist. Atty., Milton O. Moss, Dist. Atty., Norristown, Pa. on the brief), for appellee.

Before BIGGS, McLAUGHLIN and FREEDMAN, Circuit Judges.

OPINION OF THE COURT

PER CURIAM.

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1

On November 3, 1961 the Relator Miller, having been found guilty by a jury of the crime of receiving stolen goods was sentenced to not less than two and not more than ten years imprisonment. Subsequently, on January 29, 1966 Miller was sentenced to serve from seven to twenty years on another indictment. The latter, the 1966 sentence, was ordered to commence after Miller had completed the 1961 sentence. The Relator sought a writ of habeas corpus in the court below alleging certain constitutional infirmities in his trial which had resulted in the 1961 sentence, the sentence which he is presently serving. The court below, citing McNally v. Hill, 293 U.S. 131, 55 S.Ct. 24, 79 L.Ed. 238 (1934), denied the writ on the ground that habeas corpus would be available to the Relator only when he had served his first sentence and he was not entitled to release in the light of his outstanding 1966 sentence. The court below was in error. Walker v. Wainwright, 390 U.S. 335, 88 S.Ct. 962, 19 L.Ed.2d 1215 (1968); Palumbo v. State of New Jersey, 334 F.2d 524, 525 (3 Cir. 1964).

2

Accordingly, the judgment will be reversed and the case remanded with directions to reinstate the petition and to proceed as the law and the facts may require.