U.S. Supreme Court MCNALLY v. HILL, 293 U.S. 131 (1934)

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detention were found to be unlawful. [Footnote 1] In this, the statute conformed to the traditional form of the writ, which put in issue only the disposition of the custody of the prisoner according to law. [Footnote 2] There is no warrant in either the statute or the writ for its use to invoke judicial determination of questions which could not affect the lawfulness of the custody and detention, and no suggestion of such a use has been found in the commentaries on the English common law. [Footnote 3] Diligent search of the English author-

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ities and the digests before 1789 has failed to disclose any case where the writ was sought or used, either before or after conviction, as a means of securing the judicial decision of any question which, even if determined in the prisoner's favor, could not have resulted in his immediate release. [Footnote 4]

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lawfully detained under a sentence which is invalid in part. Habeas corpus may not be used to modify or revise the judgment of conviction. Harian v. McGourin, , 31 S.Ct. 44, 21 Ann.Cas. 849; United States v. Pridgeon, 153 U.S. 48, 63, 14 S.Ct. 746. Even when void, its operation may be stayed by habeas corpus only through the exercise of the authority of the court to remove the prisoner from custody. That authority cannot be exercised where the custody is lawful.

Wherever the issue has been presented, this Court has consistently refused to review, upon habeas corpus, questions which do not concern the lawfulness of the detention. [Footnote 5] In re Graham (Graham v. Weeks), , 11 S.Ct. 363; In re Swan, 150 U.S. 637, 653, 14 S.Ct. 225; Harlan v. McGourin, supra; United States v. Pridgeon, supra; Nishimura Ekiu v. United States, , 12 S.Ct. 336; Iasigi v. Van der Carr, 166 U.S. 391, 17 S.Ct. 595; Hale v. Henkel, 201 U.S. 43, 77, 26 S.Ct. 370; Ex parte Wilson, 114 U.S. 417, 421, 5 S.Ct. 935. The lower federal courts have generally denied petitions for the writ where the prisoner was at the time serving a part of his sentence not assailed as invalid. [Footnote 6]

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The petitioner asks here only a ruling which will establish his eligibility for parole, because of the invalidity of the sentence on the third count. The ruling sought is such as might be obtained in a proceeding brought to mandamus the parole board to entertain his petition for parole, if the sentence on the third count were void for want of jurisdiction of the court to pronounce it. This use of habeas corpus is unauthorized by the statutes of the United States, and for that reason the judgment must be

Affirmed. Footnotes

Footnote 1 The Habeas Corpus Act appears from its preamble to have been especially, although not exclusively, directed at cases in which the King's subjects were detained in custody upon a criminal charge where by law they were entitled to bail. It authorized the writ to issue, directed to any sheriff or gaoler, or other person 'for any person in his or their custody.' It commanded the production of the prisoner before the judicial officer to whom the writ was to be returned and directed that such officer 'shall discharge' the 'prisoner from his imprisonment' with provision for taking bail in his discretion, 'unless it shall appear' to him that the petitioner 'is detained upon a legal process, order or warrant out of some court that hath jurisdiction of criminal matters' or upon warrant for an offense 'for which by law the prisoner is not bailable.' 31 Car. II, II( 2), III(6)(7).

Footnote 2 The writ, in its historic form, like that now in use in the federal courts, was directed to the disposition of the custody of the prisoner. It commanded the officer to 'have the body' of him 'detained in our prison under your custody,' 'together with the day and cause of his being taken and detained,' before the judge at a specified time and place 'to do and receive all and singular those things which our said chief justice shall then and there consider of him in this behalf.' Richardson, The Attorney's Practice in the Court of Kings Bench, vol. 1, p. 369. Numerous writs, in substantially the same form, used between 5 Edw. IV and James II, are collected in Tremaine, Pleas of the Crown, 351-435. The earliest of these is reprinted in Coke's Second Institutes, 53. And see Hurd, Habeas Corpus, 232-233.

Footnote 3 Bacon, in his Abridgment, 425, declared the writ 'is the most usual remedy by which a man is restored to his liberty if he hath by law been deprived of it.' And Hale said that it was designed 'to remove or avoid the imprisonment.' Analysis of the Law, 78; see, also, Pleas of the Crown, 143. And see Coke, Second Institutes, 52, 53; Comyns, Digest of the Laws of England, 454; Blackstone, Commentaries, vol. 1, 129-137.

Footnote 4 The Court of Kings Bench, in Rex v. Clarkson, 1 Stra. 444, in refusing to order the release of a woman content to remain with her guardian, said: 'We have nothing to do ... but only to see that she is under no illegal restraint.' See Brass Crosby's Case, 3 Wils. 189, 198. 'This is a writ by which the subject has a right of remedy to be discharged out of custody, if he hath been committed and is detained contrary to law.'

Footnote 5 In Morgan v. Devine, 237 U.S. 632, 637, 35 S.Ct. 712, the writ was denied on the merits and in Ex parte Spencer, , 33 S.Ct. 709, petition for the writ was denied because sought to be used as a substitute for a writ of error, although in each case the petitioner had not served an admittedly valid part of his sentence. In neither case did the opinion discuss the question whether the application was premature.

Footnote 6 The Courts of Appeals in circuits other than the eighth have uniformly denied petitions for writs of habeas corpus when the prisoner was not at that time serving the part of the sentence said to be invalid. Carter v. Snook, 28 F.(2d) 609 (C.C.A.5th); Eori v. Aderhold, 53 F.(2d) 840, 841 (C.C.A.5th); De Bara v. United States, 99 F. 942 (C.C.A.6th); United States v. Carpenter, 151 F. 214, 9 L.R.A.(N.S.) 1043, 10 Ann.Cas. 509 (C.C.A.9th); Mabry v. Beaumont, 290 F. 205, 206 (C.C.A.9th); Dodd v. Peak, 60 App.D.C. 68, 47 F.(2d) 430, 431. And to the like effect, see Woodward v. Bridges, 144 F. 156 (D.C.); Ex parte Davis, 112 F. 139 (C.C.). This was the view of the Court of Appeals for the Eighth Circuit in Connella v. Haskell, 158 F. 285, 289. But in O'Brien v. McClaughry (C.C.A.) 209 F. 816, 820, 821, that court, in order that the prisoner might apply for parole for the valid part of his sentence, remanded the prisoner with directions to the District Court to discharge the prisoner from custody with respect to the invalid sentence, but to remand him to custody upon the valid sentence. This procedure was followed by the same court in Cahill v. Biddle (C.C.A.) 13 F.(2d) 827, 828, 829. But see Morgan v. Sylvester (C.C.A.) 231 F. 886, 887; Hostetter v. United States (C.C.A.) 16 F.(2d) 921, 923, and Schultz v. Biddle, 19 F.(2d) 478, 480, in the same court.

In Colson v. Aderhold, 5 F.Supp. 111, the District Court for Northern Georgia entertained a writ of habeas corpus, reduced the sentence from fifty to thirty-five years, and remanded him for custody to serve the valid part of his sentence.