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PRICE v. ZERBST, Warden.

(Circuit Court of Appeals, Fifth Circuit.

March 27, 1920.)

No. 3491.

Habeas corpus <3=22(1) — Unauthorized substitute sentence does not invalidate original sentence, and so is not ground for writ.

That, after sentence of a defendant to a term in prison, a substitute sentence was imposed in his absence, differing only as to its term, affords no ground for habeas corpus before the expiration of either term; the first sentence being still in force, if the second was unauthorized and void.

Appeal from the District Court of the United States for the Northern District of Georgia; Samuel H. Sibley, Judge.

Habeas corpus by Richard F. Price against Fred G. Zerbst, Warden of the United S'tates penitentiary at Atlanta, Georgia. Writ denied, and petitioner appeals.

Affirmed.

The following is the opinion of Sibley, J., in court below:

The petition for habeas corpus discloses that on April 30, 1919, the petitioner was sentenced to the penitentiary in the District Court of the Southern District of New fork, for a term of three years, to date from a day six months previous, on which petitioner had been arrested and imprisoned. No contention is made but that this sentence was lawful. The same day, it is averred, in the absence of the petitioner and without his knowledge or consent, there was substituted for that sentence, one for two years and six months, to date from the day of the sentence. The petitioner claims that thereby he was deprived of some advantages as to parole and reduction of time for goon behavior; but no application for parole is alleged to have been made and refused because premature.

If the substituted sentence he void, as contended, instead of merely erroneous, then the original sentence is still of force. In no case could it be said that the petitioner is unlawfully confined, since the term of neither sentence has expired under any view of .it. No reason is disclosed why he should now be set at liberty, as he claims.

His imprisonment appearing to be lawful under either sentence, the writ of habeas corpus is denied.

Richard F. Price, in pro. per.

Hooper Alexander, U. S. Atty., and John W. Henley, Asst. U. $. Atty., both of Atlanta, Ga., for appellee.

Before WARNER, Circuit Judge, and CALL and HUTCHESON, District Judges.

PER CURIAM.

For reasons stated in the opinion rendered by the District Judge, we think that the refusal to order the issue of the writ of habeas corpus was proper. The averments of the petition for the writ did not show that the restraint complained of was illegal.

Affirmed.

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