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UNITED STATES EX REL. DUGAN v. ASHE

DISTRICT COURT, W.D. PENNSYLVANIA


October 10, 1944

UNITED STATES ex rel. DUGAN
v.
ASHE, Warden

The opinion of the court was delivered by: GIBSON

GIBSON, District Judge.

This court received by mail a petition for habeas corpus from the relator, Raymond Dugan, which has been ordered to be filed.

From the petition it appears that the relator was sentenced on January 20, 1939, by the Court of Oyer and Terminer of Allegheny County, as follows:

 "No. 15 November Term, 1938, for the crime of Robbery and Receiving Stolen Goods, to a term of not less than 20 years and not more than 40 years, sentence to begin at the expiration of sentence that defendant is now serving for violation of parole.

 "No. 50 December Term, 1938, for the crime of Robbery and Receiving Stolen Goods, to a term of not less than 20 years and not more than 40 years, sentence to begin at the expiration of sentence imposed at No. 15 November Term, 1938.

 "No. 54 December Term, 1938, for the crime of Robbery and Receiving Stolen Goods, to a term for and during the period of his natural life, sentence to begin and take effect at expiration of sentence imposed at No. 50 December Term, 1938."

 Alleging illegality of the sentence, Dugan petitioned the Supreme Court of Pennsylvania for a writ of habeas corpus. That court, opinion by Mr. Justice Maxey, dismissed the petition, but held that it properly could, in view of the admissions of fact therein, amend the record to make it accord with the Pennsylvania Habitual Criminals Act, and entered an order sustaining the life sentence at No. 54 December Term, 1938, and vacating other prior judgments. As stated, this order was designed to bring the sentence into technical compliance with the Habitual Criminals Act, 19 P.S. ยง 922 et seq. The matter is reported in 338 Pa. 541, 13 A.2d 523.

 Subsequent to this order the relator filed another petition for habeas corpus in the Supreme Court of Pennsylvania. After rule to show cause issued, the rule was discharged. Commonwealth ex rel. Dugan v. Ashe, Warden, 342 Pa. 77, 19 A.2d 461.

 On October 13, 1941, Dugan applied to the Supreme Court of the United States for a writ of certiorari. The court denied this writ (314 U.S. 610, 62 S. Ct. 69, 86 L. Ed. 491), noting that the case below had been heard at 342 Pa. 77, 19 A.2d 461. On November 17, 1941, the court denied a rehearing of the petition for the writ. 314 U.S. 712, 62 S. Ct. 294, 86 L. Ed. 567.

 In view of the fact that the petition now before this court discloses that the sentence concerning which complaint is made was twice before the Supreme Court of Pennsylvania and twice considered by the Supreme Court of the United States, as well as once before the Superior Court of Pennsylvania on appeal (151 Pa.Super. 506, 507, 30 A.2d 655), the issue of the writ prayed would be useless, and the petition therefore will be denied.

19441010

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