United States Ex Rel. Lawrence St. John, Appellant, v. George A. Cummings, Warden, Appellee, 233 F.2d 187 (2d Cir. 1956)

The relevant facts of this case are almost identical with those in the companion case of United States ex rel. Embree v. Cummings, 2 Cir., 233 F.2d 188. The petition was at the time of the filing of this petition confined in the Connecticut State Prison. He had been sentenced in 1944 "to suffer imprisonment * * * for the term of not less than twelve years and not more than fifteen years on the first count * * * and two years on the second count, two years on the third count and two years on the fourth count * * *" on charges of indecent assault to which he had pleaded guilty. He alleged in his petition that, with allowance for good behavior, he had already served the maximum term on the first count. He contended that the sentences on the separate offenses were concurrent and that he was entitled to release.

The petitioner also alleged that he had made application for a writ of habeas corpus to the Superior Court of Hartford, Connecticut, that the application was not heard because of failure to pay the filing fee, and that the petitioner was without funds to pay the fee.

The petitioner has apparently exhausted his state remedies. It is clear, however, for the reasons stated in the Embree case, which we also decide today, that his sentence has not expired and that the State of Connecticut may lawfully detain him.

It appears, however, that since the commencement of this proceeding the petitioner has been released on parole and is no longer in the custody of the respondent. The case must therefore be dismissed as moot. Weber v. Squier, 1942, 315 U.S. 810, 62 S. Ct. 800, 86 L. Ed. 1209; McNally v. Hill, 1934, 293 U.S. 131, 138, 55 S. Ct. 24, 79 L. Ed. 238; Van Meter v. Sanford, 5 Cir., 1938, 99 F.2d 511; Witte v. Ferber, 3 Cir., 1955, 219 F.2d 113.

On this appeal counsel for the appellant have acted at the request of this court. They have ably represented their client; the court is grateful for their service and their assistance.

The appeal is dismissed.