McLaughlin, Kalodner and Aldisert, Circuit Judges.
The appellant, William Van Scoten, now serving a prison sentence in the New Jersey State Prison at Trenton, New Jersey, imposed by a New Jersey state court, filed a petition for a writ of habeas corpus in the Eastern District of Pennsylvania, challenging the validity of a sentence imposed upon him by a Pennsylvania state court, the service of which is to commence upon completion of his New Jersey imprisonment.
The District Court, in a Memorandum Order dated August 30, 1967, denied Van Scoten's petition on the ground that under McNally v. Hill, 293 U.S. 131, 137, 55 S. Ct. 24, 26, 79 L. Ed. 238 (1934) "a federal district judge may not inquire into the legality of a sentence which the prisoner has not yet begun to serve."
That, in paraphrase, "a trial judge's lot is not a happy one",*fn1 is demonstrated in the instant case by the circumstance that subsequent to the District Court's then correct application of McNally, it was in terms overruled in Peyton v. Rowe, 391 U.S. 54, 67, 88 S. Ct. 1549, 20 L. Ed. 2d 426 (1968), which held that in a habeas corpus proceeding under 28 U.S.C.A. § 2241(c) (3) the constitutionality of a sentence scheduled for future service may be challenged.
In light of Peyton we are constrained to rule that the District Court erred in denying Van Scoten's petition on the ground that habeas corpus relief is unavailable to challenge a sentence yet to be served.
We are, however, of the opinion that the District Court was without territorial jurisdiction to entertain Van Scoten's petition and should have dismissed it for that reason since at the time it was filed Van Scoten was incarcerated in a New Jersey jail which is outside the territorial jurisdiction of the Eastern District of Pennsylvania. As subsequently developed, it is settled law that a federal district court is without jurisdiction to issue a habeas corpus writ if the person detained is not within its territorial jurisdiction when his petition for the writ is filed.*fn2
The record discloses that on March 17, 1960 Van Scoten was sentenced by a New Jersey court to serve a jail term in the New Jersey State Prison at Trenton, New Jersey. While serving that sentence he pleaded guilty, on October 14, 1960, in a Bucks County, Pennsylvania, court to two burglary and larceny indictments and was sentenced to serve one to two years in the Pennsylvania State Prison upon completion of his New Jersey imprisonment. Van Scoten was then returned to the New Jersey State Prison and the Commonwealth of Pennsylvania lodged a detainer against him.
Thereafter, Van Scoten, while still incarcerated in New Jersey, filed a petition for a writ of habeas corpus in the Court of Common Pleas of Bucks County, but it was denied on July 26, 1965 as being premature. A subsequent petition to the same court was denied, after a hearing,*fn3 on the merits, on September 6, 1966. This denial was affirmed per curiam by the Pennsylvania Superior Court, Commonwealth ex rel. Van Scoten v. Yeager, 209 Pa.Super. 752, 226 A.2d 864 (1967) and by the Pennsylvania Supreme Court (per curiam June 12, 1967) (unreported). Van Scoten then applied for post-conviction relief under the Pennsylvania Post Conviction Hearing Act, 19 P.S. § 1180-1 et seq., but his application was denied on June 22, 1967 by the Court of Oyer and Terminer of Bucks County pursuant to Section 3(b) of the Act on the ground that he was not confined within the jurisdiction of the court.
Van Scoten then brought the instant petition in the District Court on August 4, 1967, alleging that he was being held in custody unlawfully since (1) he had not intelligently and understandingly consented to the pleas of guilty in the Bucks County court and (2) he had not been represented by counsel therein prior to entry of his guilty pleas. As earlier stated, this petition was denied without a hearing on August 30, 1967, on the ground that under McNally v. Hill, supra, the District Court could not inquire into the legality of a sentence that the prisoner had not yet begun to serve. Van Scoten then petitioned for reconsideration and for a certificate of probable cause, contending that the Pennsylvania detainer lodged against him with the New Jersey authorities placed him in Pennsylvania custody. Rehearing was denied on September 14, 1967, on the ground that the detainer did not constitute custody by the Pennsylvania authorities.
At all times during these proceedings Van Scoten has been, and still is, incarcerated in New Jersey, and has not yet begun to serve his Pennsylvania sentences.
Jurisdiction of federal district courts with respect to habeas corpus petitions filed by state prisoners is fixed by 28 U.S.C.A. § 2241(a). It provides in relevant part as follows:
"Writs of habeas corpus may be granted by the Supreme Court, any justice thereof, the district courts and any circuit judge within their respective ...