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decided: September 29, 1965.


Appeal from judgment of Court of Common Pleas of Delaware County, No. 9184 of 1963, in case of Commonwealth ex rel. Rayford G. Stevens v. David N. Myers, Superintendent.


Rayford G. Stevens, appellant, in propria persona.

Ralph B. D'Iorio, Assistant District Attorney, Domenic D. Jerome, First Assistant District Attorney, and Jacques H. Fox, District Attorney, for appellee.

Bell, C. J., Musmanno, Jones, Cohen, Eagen, O'Brien and Roberts, JJ. Opinion by Mr. Justice Roberts. Concurring Opinion by Mr. Chief Justice Bell. Dissenting Opinion by Mr. Justice Cohen. Mr. Justice Jones joins in this dissent.

Author: Roberts

[ 419 Pa. Page 3]

This appeal questions the correctness of the dismissal, without hearing, of a 1963 petition for a writ of habeas corpus contesting a 1954 murder conviction.

After appellant-petitioner Stevens' 1954 jury trial resulted in a verdict of murder in the first degree on a felony-murder charge, the trial judge imposed a sentence of life imprisonment. Stevens, represented by court appointed counsel at trial, took no direct appeal but in 1959 he attacked the conviction by way of a petition for a writ of habeas corpus. That petition was dismissed by the Court of Common Pleas of Delaware County and the dismissal was affirmed by this Court. Commonwealth ex rel. Stevens v. Myers, 398 Pa. 23, 156 A.2d 527 (1959). Certiorari was denied by the Supreme Court of the United States. 363 U.S. 816, 80 S. Ct. 1254 (1960). In 1963 Stevens, again contending that his murder conviction was invalid, once more sought a writ of habeas corpus.*fn1 The petition was dismissed without hearing and the present appeal follows the dismissal of this second petition.*fn2

[ 419 Pa. Page 4]


At the outset, we feel constrained to discuss an important issue of prematurity which was not raised by the Commonwealth or noticed by the court below.*fn3

At the time Stevens was sentenced to life imprisonment on the murder conviction, he was already serving a sentence for an unrelated Pennsylvania robbery. The trial judge explicitly directed that the life sentence commence at the expiration of the ten to twenty year robbery sentence.*fn4 Since the robbery sentence was to run from April 14, 1954, the expiration date of the minimum was April 14, 1964 and the expiration date of the maximum will be April 14, 1974. Sentences are considered imposed for the maximum term unless parole intervenes. Commonwealth ex rel., Appellant [ sic ] v. Ashe, 320 Pa. 341, 344, 345, 182 Atl. 229, 230-31 (1936); Commonwealth ex rel. Salerno v. Banmiller, 189 Pa. Superior Ct. 156, 161, 149 A.2d 501, 504 (1959). Since petitioner has not been paroled, he is presently serving a sentence which he does not challenge.*fn5 Under such circumstances the rule has been that since the writ of habeas corpus is said to test only the legality of present restraint, the petition must be dismissed as premature

[ 419 Pa. Page 5]

    because the propriety of the present confinement is unquestioned. E.g., Commonwealth ex rel. Lewis v. Ashe, 335 Pa. 575, 7 A.2d 296, cert. denied, 308 U.S. 596, 60 S. Ct. 132 (1939) (per curiam) (attacked sentence for escape; held premature because still serving basic sentence).*fn6 In view of vastly changed circumstances affecting the use of the writ, we believe it appropriate to reconsider this judicial rule governing the function of the writ as it applies to cases of the present nature.*fn7

[ 419 Pa. Page 6]

The prematurity concept has been enunciated not only in considering the availability of the writ of habeas

[ 419 Pa. Page 7]

    corpus*fn8 as used in Pennsylvania, but also as a principle applicable to the federal writ,*fn9 and the writ

[ 419 Pa. Page 8]

    as utilized in other states.*fn10 Most frequently cited as authority for the proposition is McNally v. Hill, 293 U.S. 131,

[ 419 Pa. Page 955]

S. Ct. 24 (1934). McNally undertook to discern the scope of the federal writ as conceived in a federal statute. That statute provided that the federal writ might issue "for the purpose of an inquiry into the cause of restraint . . . ." The statute contained the express requirement that the petitioner be in "custody" of the United States.*fn11 In interpreting the statute, the Supreme Court of the United States looked to the common law for guidance in delineating the use of the writ. Finding no case prior to enactment of the statute in which the writ was used to determine a question which, even if decided favorably to the petitioner, could not have resulted in the petitioner's immediate release, that Court held that "such use of the writ in the federal courts is without the support of history or of any language in the statutes which would indicate a purpose to enlarge its traditional function." 293 U.S. at 138, 55 S. Ct. at 27. Since McNally does no more than define the role of the federal writ, it is, of course, not binding on this Court, although its careful historical discourse is helpful. Most subsequent decisions rely directly on McNally or rely on cases which

[ 419 Pa. Page 10]

    can be traced to McNally. Subsequent decisions have not paused to re-examine the serious consequences to our system of justice which are attendant upon the rule when blanketly applied in modern times. One federal court of appeals, however, has recently ruled contrary to McNally in the belief that the "restraint" requirement has now been relaxed by the Supreme Court.*fn12

In earlier times petitions for writs of habeas corpus were a far greater rarity than today, at least in Pennsylvania. Today's frequent resort to the writ can be laid to the burgeoning use of the writ as a means of attacking criminal convictions collaterally. This phenomenal development of the writ as an instrument of post-conviction litigation was not foreseen when the common law deemed the writ competent to test only sentences under which the petitioner was then serving.*fn13

[ 419 Pa. Page 11]

That the scope of the writ has developed greatly with the exigencies of the time as a post-conviction remedy seems so undeniable that extensive citation and comparison of cases might now well seem a needless exercise.*fn14 There is no other comprehensive method of collateral attack in Pennsylvania.*fn15 Thus this growth

[ 419 Pa. Page 12]

    of the writ is not surprising or unwarranted in view of our continuing efforts to provide a full hearing for claims of federal constitutional violations*fn16 and in the face of the present urgent necessity for a state post-conviction avenue which will afford an adequate corrective process for hearing and determining alleged violations of federal constitutional guarantees. See, e.g., Case v. Nebraska, 381 U.S. 336, 85 S. Ct. 1486 (1965); Reitz, Federal Habeas Corpus: Post-conviction Remedy for State Prisoners, 108 U. Pa. L. Rev. 461, 465-66, 469-70 (1960); Meador, Accommodating State Criminal Procedure and Federal Post-conviction Review, 50 A.B.A.J. 928, 929-30 (1964). But in spite of the incontestable post-conviction development of the writ of habeas corpus in Pennsylvania, the prematurity concept has been carried over from historical uses of the writ, seemingly without regard to the transformed surroundings of the writ when used in post-conviction proceedings.

Even so, the changed quality of some petitions does not alone account for the dissatisfaction to be found in the prematurity limitation today. What compounds

[ 419 Pa. Page 13]

    the problem and renders the concept especially detrimental to our ordered system of justice is the increased variety of contentions underlying the current petitions and the large number of convictions which are potentially voidable because of recent developments in the law. Thus the quantity of cases in which the doctrine comes to bear magnifies the difficulties. The number of cases which must be retried because of decisions such as those in Gideon v. Wainwright, 372 U.S. 335, 83 S. Ct. 792 (1963), and Jackson v. Denno, 378 U.S. 368, 84 S. Ct. 1774 (1964), are rapidly pyramiding.*fn17 Moreover, the most cursory study of appellate decisions

[ 419 Pa. Page 14]

    in this Commonwealth over the past few years will readily reveal that increasing areas of possible invalidation of convictions are being recognized on post-conviction attacks by way of habeas corpus petitions. The result is a roughly corresponding growth in the number of retrials made necessary.

The prematurity doctrine, when now applied to petitions raising contentions which, if sustained, would require a new trial, imports added dangers into today's changed situation, a situation already fraught with numerous difficulties. By conservative estimate a retrial ordered on a petition for habeas corpus would come no earlier than four years after the original trial if the petition is promptly brought and disposed of in the normal course. Actually, the intervening time is likely to be substantially greater. In the present case, for example, the petition was filed ten years after the original trial. The prematurity concept, if applied, would compound the situation, were a hearing or retrial required, by doubling this time and postponing the hearing or retrial for ten more years, until after 1974.*fn18 In metropolitan areas and in our more populous

[ 419 Pa. Page 15]

    counties, even now suffering under already burdensome court dockets, the delay is almost certain to be further increased.

Such delay naturally places a serious and sometimes fatal strain on the Commonwealth's ability to present its case on retrial. Witnesses may have become scattered or disappeared entirely, memories may have faded and other evidence may no longer be accessible. Neither is it to be overlooked that habeas corpus hearings may be rendered progressively more difficult with the passage of time. "It is needless to dwell on the desirability of prompt review and of the difficulties presented by delayed review, difficulties which, among other things, affect both the ability to conduct satisfactorily a comprehensive habeas corpus hearing and the ability to proceed effectively with a new trial if one is required." Commonwealth ex rel. Harbold v. Myers, 417 Pa. 358, 367, 207 A.2d 805, 810 (1965). We are also mindful that, in addition to the heavy disadvantage to the Commonwealth already noted, similar evidentiary considerations indicate that a petitioner's capability to make out a claimed violation of constitutional rights at a habeas corpus hearing, or his ability to defend himself upon retrial, may be prejudiced by lengthy delay.

In short, delay may cause either the Commonwealth or the petitioner to forfeit the hearing or retrial without regard to the merits of the case. Eventually, however, the heaviest detriment comes to the Commonwealth. Upon a retrial, the Commonwealth has the

[ 419 Pa. Page 16]

    traditional burden of proving the elements of its case beyond a reasonable doubt and meeting that burden obviously becomes more onerous ten or twenty years after the commission of the crime. To that extent time is not neutral but, rather, operates in such instances to the advantage of the accused.

The prematurity concept as applied to petitions collaterally attacking convictions only aggravates these already acute problems. In return for its serious disadvantages, the concept has little to recommend it except the historical lineage of the writ as used in other instances. We do not believe that mere historical considerations, now outdistanced by modern conditions, should be allowed to control the scope of a writ which in this state is clearly adaptable to the exigencies of the times when the writ is used in a new class of cases. See Commonwealth ex rel. Levine v. Fair, 394 Pa. 262, 285, 146 A.2d 834, 846 (1958); Gosline v. Place, 32 Pa. 520, 524 (1859); Commonwealth v. Gibbons, 9 Pa. Superior Ct. 527, 533 (1899), aff'd sub nom. Kelly's Contested Election, 200 Pa. 430, 50 Atl. 248 (1901). "Old forms will not entirely suit new classes of cases, but must be moulded to suit them." Gosline v. Place, 32 Pa. 520, 524 (1859). Although steeped in tradition, the writ is not insensitive to change. Since the writ has developed as a means of collateral, post-conviction attack, the prerequisites for permitting its use should be adjusted so that the writ may effectively perform that role. Our present judgment must be based on today's needs which the writ is capable of meeting in satisfying the present demands of justice.

Nor do we entertain any doubt of our judicial power to delineate the conditions under which our writ of habeas corpus may be used in challenging criminal convictions.*fn19 Although there does exist in Pennsylvania

[ 419 Pa. Page 17]

    a substantive statute regarding habeas corpus as applied to some criminal matters, the Act of February 18, 1785,*fn20 unlike the federal statute in McNally v. Page 18} Hill, supra, our statute does not govern use of the writ as a method of collateral attack on judgments of conviction. In so far as criminal matters are concerned, our Act of 1785 extends only to public pretrial restraints on bailable criminal charges. But while it covers such pretrial situations, as long ago as 1861 this Court made it clear that the Act has no application to petitions for writs of habeas corpus which would seek to test a criminal conviction. Williamson v. Lewis, 39 Pa. 9 (1861); see Commonwealth ex rel. Burton v. Baldi, 147 Pa. Superior Ct. 193, 198, 24 A.2d 76, 79 (1942). Our common law writ has a much broader scope than that secured by the Act of 1785. Williamson v. Lewis, 39 Pa. 9, 29-30, 31 (1861). And so, unlike the statutory federal writ analyzed in McNally, the scope of our post-conviction writ of habeas corpus is not frozen into statute but, rather, being moldable to the exigencies of the times, is left to the development of the common law.

It is notable that the original rigidity of the prematurity concept has been relaxed in some areas. In the face of the general principle that a petition for habeas corpus attacks only present illegal confinement,*fn21

[ 419 Pa. Page 19]

    and in spite of occasional assertions that a petition for habeas corpus, even if true, is premature if it attacks an excessive sentence which under any legal computation has not yet expired,*fn22 it seems clear in Pennsylvania that habeas corpus is a proper remedy to test the legality of a sentence being served. E.g., Commonwealth ex rel. Dermendzin v. Myers, 397 Pa. 607, 156 A.2d 804 (1959); Commonwealth ex rel. [ sic ] v. Smith, 324 Pa. 73, 187 Atl. 387 (1936); Halderman's Petition, 276 Pa. 1, 119 Atl. 735 (1923). Thus in habeas corpus proceedings, although technically premature, improper or excessive sentences have been corrected even though the present confinement is within the period of a legal sentence, and the petitioner must be remanded to prison to serve remaining time instead of being released immediately. Commonwealth ex rel. Dermendzin v. Myers, 397 Pa. 607, 156 A.2d 804 (1959); Commonwealth ex rel. Guiramez v. Ashe, 293 Pa. 18, 141 Atl. 723 (1928); Commonwealth ex rel. Milk v. Maroney, 198 Pa. Superior Ct. 442, 181 A.2d 702 (1962), allocatur denied, 198 Pa. Superior Ct. xxix, cert. denied, 372 U.S. 920, 83 S. Ct. 735 (1963); Commonwealth ex rel. Cooper v. Banmiller, 193 Pa. Superior Ct. 524, 165 A.2d 397 (1960); Commonwealth ex rel. Flory v. Ashe, 132 Pa. Superior Ct. 405, 1 A.2d 685 (1938). See also Commonwealth ex rel. Micholetti v. Ashe, 359 Pa. 542, 59 A.2d 891 (1948). See generally

[ 419 Pa. Page 20]

Notes, Habeas Corpus in Pennsylvania after Conviction, 20 U. Pitt. L. Rev. 652, 653-56 (1959).*fn23

Reason accords with necessity and practicality in urging that we make the conditions under which the writ will issue conform with its current scope in cases of the instant sort. The history of the writ, its traditional use, and its recent development all indicate the writ's flexibility as a procedural vehicle for collaterally reaching fundamental defects in the administration of criminal justice. A refusal to permit the employment of the writ in the present circumstances would result in placing central emphasis on the history of the writ rather than upon its suitable employment in maintaining the balance "nice, clear and true between the State and the accused."*fn24

Confident of our power to mold the Great Writ to the exigencies of the times, and mindful of present necessities, we conclude that the prematurity concept should be modified in circumstances such as those present here and that the writ of habeas corpus may be sought in post-conviction attacks on the validity of a final judgment of conviction even though the petitioner has not yet begun to serve the sentence imposed.*fn25

[ 419 Pa. Page 21]

Satisfied that Stevens' petition is timely, we turn to the merits of the case.


Only one issue on the merits presently deserves extended discussion. Stevens contends that he was deprived of his right of appeal because he was already in prison, a pauper, and unable to proceed on his own behalf without the benefit of counsel. The record before us also contains the important claim that trial counsel refused to take the appeal because of Stevens' lack of funds.

Court appointed counsel ably represented petitioner at trial. He diligently and adequately preserved the issues on the record in the event of an appeal. Furthermore, counsel filed motions for a new trial and in arrest of judgment, although these were ultimately refused by the trial court.*fn26 Following petitioner's sentence, however, no action was taken to pursue and perfect his right of direct appeal to this Court.*fn27

Stevens' right on direct appeal included the right to the assistance of counsel at this critical stage. Douglas v. California, 372 U.S. 353, 83 S. Ct. 814 (1963); Commonwealth v. Sliva, 415 Pa. 537, 204 A.2d 455 (1964). It is no bar that the pertinent events of Stevens' conviction occurred before the decision in Douglas v. California, supra. Douglas must be applied retroactively. Smith v. Crouse, 378 U.S. 584, 84 S. Ct. 1929 (1964) (per curiam), reversing 192 Kan. 171, 386

[ 419 Pa. Page 22]

P. 2d 295 (1963); see Ruark v. Colorado, 378 U.S. 585, 84 S. Ct. 1935 (1964) (per curiam); Daegele v. Kansas, 375 U.S. 1, 84 S. Ct. 89 (1963) (per curiam); Herrera v. Heinze, 375 U.S. 26, 84 S. Ct. 90 (1963) (per curiam); Tabb v. California, 375 U.S. 27, 84 S. Ct. 90 (1963) (per curiam); Shockey v. Illinois, 375 U.S. 22, 84 S. Ct. 83 (1963) (per curiam); Ausbie v. California, 375 U.S. 24, 84 S. Ct. 87 (1963) (per curiam).

Naturally, a hearing is not required in every case in which there has not been a timely direct appeal. However, the petition and record before us suggest enough on this issue so that we feel it necessary to remand for a hearing at which time the court should inquire into all the circumstances attendant upon the failure to take a direct appeal in this case.*fn28 Especially significant in this regard is the allegation that trial counsel refused to take an appeal because of petitioner's lack of funds.*fn29 Among the questions into which the hearing court should specifically inquire are: whether petitioner was indigent at the conclusion of his trial, whether he was informed of his right to appeal by anyone, whether he independently knew of his right to appeal, whether he desired to appeal, whether he communicated a desire to his trial counsel that he

[ 419 Pa. Page 23]

    wished to appeal, whether he communicated such a desire to the trial court, and what were the reactions of counsel or the court. This will present a full record. The hearing court shall then determine whether, directly or indirectly, petitioner was denied the assistance of counsel in perfecting his appeal, whether a denial of counsel was a factor in the failure to take an appeal or whether some other reason was involved which amounted to an intelligent and knowing waiver of the right to appeal and the assistance of counsel.*fn30

It is best that we do not decide in the abstract exactly what facts must be shown in these regards for a denial of constitutional rights to be proved. Because the question is somewhat novel, that determination is best left to a time and posture when there is a full record. In the event the hearing court determines that there was no denial of rights, it shall enter an order dismissing the petition for habeas corpus. Should the court decide that there was a denial of constitutional rights, it shall then enter an order so finding and shall transfer the record to the court of oyer and terminer so that counsel may be appointed for appeal and an order entered authorizing an appeal to be taken from the judgment of sentence on the murder conviction.*fn31 The parties have their usual right of appeal from the hearing court's order.

Should it be concluded below that there was a denial of rights in regard to the appeal, we will allow relator, on motion of his appointed counsel, to docket his appeal here just as if timely filed.*fn32

[ 419 Pa. Page 24]


We find it unnecessary to engage in extended discussion of further contentions in the habeas corpus petition. Petitioner's allegation that the Commonwealth suppressed evidence is contradicted by the trial record and petitioner's own testimony at trial. We also expressly reject petitioner's contention that his conviction is invalid because, at his trial prior to the Split-Verdict Act of December 1, 1959, P. L. 1621, § 1, 18 P.S. § 4701, evidence of two prior convictions was introduced. Petitioner's contention is based mainly on the case of United States ex rel. Scoleri v. Banmiller, 310 F. 2d 720 (3d Cir. 1962), cert. denied, 374 U.S. 828, 83 S. Ct. 1866 (1963). See also United States ex rel. Johnson v. Rundle, 349 F. 2d 416 (3d Cir. 1965), affirming per curiam 243 F. Supp. 695 (E.D. Pa. 1964). The record fails to place the instant case within the ambit of Scoleri or Johnson. See, e.g., United States ex rel. Rucker v. Myers, 311 F. 2d 311 (3d Cir. 1962). See also Commonwealth ex rel. Walls v. Maroney, 416 Pa. 290, 205 A.2d 862 (1965); Commonwealth ex rel. McNeair v. Rundle, 416 Pa. 301, 206 A.2d 329 (1965); Commonwealth v. Coyle, 415 Pa. 379, 387-88, 203 A.2d 782, 787 (1964).

The order of the Court of Common Pleas of Delaware County is vacated and the record is remanded for proceedings consistent with this opinion.


Order vacated and record remanded.

Concurring Opinion by Mr. Chief Justice Bell:

Recent decisions of the Supreme Court of the United States which overruled and changed well settled law are the real cause of the flood of habeas corpus petitions which, unlimited and unrestricted by that Court, are unrealistically and unnecessarily swamping State

[ 419 Pa. Page 25]

Courts and, we believe, Federal Courts*fn* also. Those decisions have created new and difficult legal and police problems, and have imposed new Constitutional restrictions on the solution of crime and the conviction of criminals.*fn** Especially when retroactively applied by the mandates of the Supreme Court, they seriously endanger the safety and welfare of all law-abiding citizens.

The Supreme Court of the United States has radically changed the writ of habeas corpus, its functions, its use and its boundaries.**fn** These decisions of the

[ 419 Pa. Page 26]

Supreme Court have necessitated a change by State Courts in our consideration and interpretation of the functions of the writ of habeas corpus and our appropriate procedures. For these reasons and in order to protect society from future false claims by prisoners and other persons who had been convicted of a crime or crimes and who many years thereafter challenge the constitutionality or legality of their convictions or sentences -- often when witnesses for the Commonwealth have moved or died, or their recollections of the crime or of what the criminal said or did may have become dimmed -- I would grant a hearing on the writ in this exceptional case.

Mr. Justice Roberts has written a learned Opinion in which he further extends the writ of habeas corpus to reach every allegedly unlawful detention or restraint or conviction. Although I disagree with this further extension of the writ and with some of the ideas, interpretations, deductions and conclusions of the majority, this case is so unusual that, I repeat, I concur in the result.

Dissenting Opinion by Mr. Justice Cohen:

Throughout the great and long history of the writ of habeas corpus no court has ever held, and many have expressly rejected the proposition, that the writ could issue on behalf of one who was lawfully confined. Here, petitioner seeks to attack the validity of a conviction although he is lawfully confined by reason of a different, unassailed, prior conviction. He has not yet begun to serve the sentence imposed upon the conviction which he attacks. In similar circumstances the Supreme Court of the United States has held that the

[ 419 Pa. Page 27]

    petitioner is not entitled to the writ, McNally v. Hill, 293 U.S. 131 (1934), Heflin v. United States, 358 U.S. 415 (1959), and so have we. Commonwealth ex rel. Lewis v. Ashe, 335 Pa. 575, 7 A.2d 296 (1939). See also Commonwealth ex rel. Padmonsky v. Smith, 127 Pa. Superior Ct. 24, 191 Atl. 684 (1937).

The majority sets forth only one reason for changing the rule -- that it will facilitate hearings on petitions and retrials (should they be necessary) because the evidence will be fresher. While there is much said in the majority opinion about the novelty of today's circumstances compared to the antiquity of the rule regarding when a petition for habeas corpus is appropriate, there is nothing novel about the majority's reason for change. Staleness of evidence must surely have been as much of a problem when the Hill and Ashe cases, supra, were decided as it is today.

The only thing that is different today is the increased number of petitions for habeas corpus. While this may increase the number of cases in which staleness of evidence becomes a problem it has another consequence -- it greatly increases the case load pressure upon the courts and district attorneys. Why should we now increase that pressure with cases that have heretofore been considered premature? District Attorneys and courts may well find it a mixed blessing to have less time to effectively utilize fresher evidence.

But speculation -- and it is only speculation -- about the practical effects of throwing out the rule is beside the main point. The majority approaches the issue as though the old rule has no reason. But it does. Courts never should decide issues unless and until they have to -- especially constitutional issues. "It is not the habit of the court to decide questions of a constitutional nature unless absolutely necessary to a decision of the case." Burton v. United States, 196 U.S. 283, 295 (1905). This important principle of judicial restraint

[ 419 Pa. Page 28]

    in the area of constitutional litigation was reiterated by Justices Brandeis, Stone, Roberts and Cardozo in Ashwander v. Tennessee Valley Authority, 297 U.S. 288, 347 (1936) and applied by us in Beauty Hall, Inc. v. State Board of Cosmetology, 418 Pa. 225, 210 A.2d 495 (1965). Surely this principle is a good enough reason for the continued vitality of the rule regarding the appropriate time to petition for the writ of habeas corpus. One need only consider the difficult constitutional issues the majority unnecessarily decides.

In my opinion, the majority has perverted the writ of habeas corpus, increased the case load pressure with premature cases, and unnecessarily decided constitutional issues -- with no immediate benefit to the lawfully confined petitioner. Nothing said by the majority justifies its action or impels me to abandon our long line of decisions. To do so requires that I ignore Mr. Justice Stone's penetrating discussion in McNally v. Hill, supra. It should suffice to note only the Court's conclusion in McNally : "Without restraint of liberty the writ will not issue. . . . Equally, without restraint which is unlawful, the writ may not be used. A sentence which the prisoner has not begun to serve cannot be the cause of restraint which the statute [habeas corpus] makes the subject of inquiry."

I dissent.

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