United States District Court, Northern District of Illinois, E.D
July 21, 1952
UNITED STATES EX REL. ALLEN
UNITED STATES MARSHAL.
The opinion of the court was delivered by: Perry, District Judge.
The petitioner is now in custody at the Illinois State
Penitentiary, Joliet, Illinois, under a judgment of the
Criminal Court of Cook County, handed down November 3, 1949,
convicting him of receiving and stealing a stolen motor
vehicle in which he was sentenced to a term of ten to
On June 22, 1950, the petitioner in case No. 50 Cr. 32, in
the United States District Court for the Northern District
of Illinois, was sentenced on his plea of guilty to a term
of one year and one day on each of five counts of an
indictment for possessing, uttering, and conspiring to utter
counterfeit obligations of the United States. The aforesaid
sentences were to run concurrently and were to commence at
the expiration of "the sentence imposed on said defendant in
case No. 48-36, People of the State of Illinois v. Maurice
Allen * * *".
By this action, the petitioner seeks to establish that
this judgment order is null and void for ambiguity.
The petition, on its face, reflects that the petitioner is
presently confined under a judgment of the Criminal Court of
Cook County and not under the judgment of the U.S. District
Court. Custody under the latter judgment will not take
effect until the expiration of the present State sentence.
The function of the writ of habeas corpus is to determine
whether or not the prisoner is entitled to immediate
release, and not to secure the judicial decision of a
question, which even if determined in the prisoner's favor,
could not result in his immediate release. McNally v. Hill,
293 U.S. 131, 55 S.Ct. 24, 79 L.Ed. 238. Habeas corpus may
be sought only to effectuate a prisoner's immediate release,
and not to test the legality of imprisonment at some future
time. Pope v. Huff, 73 App.D.C. 170, 117 F.2d 779,
certiorari denied 314 U.S. 669, 62 S.Ct. 134, 86 L.Ed. 535,
314 U.S. 713, 62 S.Ct. 299, 86 L.Ed. 568, rehearing denied
314 U.S. 714, 62 S.Ct. 358, 86 L.Ed. 569. Any attempt,
therefore, to test judicially the validity of a judgment
order, under which a prisoner is not yet confined, is
premature. Such is the case before the bar.
Accordingly, the writ must be discharged and the petition
must be dismissed.
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