Blair County, Pennsylvania, are void. He does not deny that he is presently serving sentences imposed at Nos. 2, 3, 4 January Term, 1963, the validity of which are not here questioned.
The gravamen of relator's petition seems to be that his right to apply for state parole has been abridged by the alleged illegal sentences in 1952. He urges that if the 1952 sentences were adjudged void, he would be eligible to apply for immediate parole consideration. It has been decided that habeas corpus cannot be granted to afford a prisoner such an opportunity. Holiday v. Johnston, 313 U.S. 342, 550, 61 S. Ct. 1015, 85 L. Ed. 1392 (1941); McNally v. Hill, 293 U.S. 131, 55 S. Ct. 24, 79 L. Ed. 238 (1934).
In McNally v. Hill, supra, p. 136, 55 S. Ct. p. 26, it was held that the "only judicial relief authorized [by habeas corpus] was the discharge of the prisoner or his admission to bail", and that where a valid sentence remains to be served, habeas corpus may not be used to inquire into the lawfulness of another sentence.
Analogous to McNally, the relator asks here only a ruling which will establish his right to apply for state parole because of the invalidity of the 1952 sentences. However, habeas corpus will not be available if the vacating of the invalid sentences will only make the relator eligible for parole on the valid sentences. For even if the issue were decided in relator's favor, it would not result in his immediate release from custody. The Pennsylvania Board of Parole, under the laws of the Commonwealth,
is given wide discretion in the granting or denial of parole, and release of a prisoner prior to the expiration of his maximum sentence is purely a matter of grace wholly within the discretion of the parole board which must decide whether or not the prisoner is a good risk for release on parole. Hendrickson v. Pennsylvania State Board of Parole, 409 Pa. 204, 185 A.2d 581 (1962); Commonwealth ex rel. Soudani v. Maroney, 200 Pa.Super. 254, 188 A.2d 780 (1963). Moreover, it is doubtful whether release on parole, even if a matter of right, is within the purview of the relief authorized by the writ of habeas corpus since it has been held by the Supreme Court of the United States that a prisoner on parole is, nevertheless, subject to significant restraints not imposed on the public generally. Jones v. Cunningham, 371 U.S. 236, 242, 83 S. Ct. 373, 9 L. Ed. 2d 285 (1963). Similarly, the Pennsylvania Supreme Court has held that parole does not set aside or affect a sentence, and the prisoner remains in the legal custody of the state and under the control of its agents. Hendrickson v. Pennsylvania State Board of Parole, supra; Commonwealth ex rel. Banks v. Cain, 345 Pa. 581, 28 A.2d 897, 143 A.L.R. 1473 (1942). Thus, if actual release on parole is not an authorized remedy under habeas corpus, it follows that the right to apply for parole, which relator alleges will accrue if the 1952 sentences are held invalid, is not authorized either.
The writ of habeas corpus may not be invoked to secure judicial determination of questions which, even if determined in relator's favor, could not affect the lawfulness of his custody or effect his release. Welch v. Markley, 338 F.2d 561 (7th Cir. 1964).
An appropriate order will be entered.