148 F. 39 | D.N.H. | 1906
This is a petition for a writ of habeas corpus, brought against the warden of the state prison of the state
• By our order, the petition was filed in court oh May 10, 1900, and •an order of court duly made that the warden of the state prison, H. K. W. Scott, should show cause why the writ should not issue. On June 18, 1906, the warden duly answered, closing his answer that ¡the term of imprisonment fixed by the sentence referred to had not (expired, and with the statement that the respondent, in his capacity as warden, held the petitioner for the purpose of serving out the unexpired term and for no other purpose, alleging at the same time that the petitioner is Mark Shinburn.
The petition does not allege that there is involved any controversy between .citizens of different states, and that on account thereof the federal courts have jurisdiction for any of the reasons explained in King v. McLean Asylum, 64 Fed. 331, 12 C. C. A. 145, but it is apparently based on some supposed claim to the effect that the petitioner is imprisoned in violation of some provision of the Constitution of the United States. The petitioner has several times informally stated his case to us, and we have never been able to perceive that any federal question of that character was involved. Neither do we now perceive any. On the other hand, it seems to us that the only possible question involved was one of identity, a question which, perhaps, might have been investigated by the federal courts, either in New York or in New Hampshire, so long as the extradition proceedings were not completed, but a question which became purely of a local character after those proceedings were completed and the petitioner was in custody in the prison of the state.
■ Also, the petitioner made separate applications to the United States district judge for the district of New Hampshire and to the justice of the Supreme Court of the United States' assigned to this circuit, each of which applications was denied. At common law, it was settled that a refusal by any judge to grant a writ of habeas corpus, or a refusal of any judge to discharge from custody a petitioner by, or in behalf of, whom such a writ had been granted, did not constitute res j udicata, but that the petitioner was at liberty to apply to any other judge, and so on until the whole series of judges had been exhausted. It is, however, commonly understood that the rule is practically otherwise in those jurisdictions where statutory rights of appeal, or writs of error, have been granted with reference to such proceedings, and that, either as a rule of law or as a practical rule of administration, no judge would allow a writ when some other judge has refused it; but that any subsequent judge would remit the applicant to his remedy by appeal, or writ of error, unless some substantial change in the cir
The petition of Henry Edward Moebus, filed July 6, 1906, is denied for want of jurisdiction, and, for that reason, the answer of H. K. W. Scott is adjudged sufficient, and the writ af habeas corpus prayed for is denied.