Henry R. Witte v. Martin J. Ferber, Sheriff of the County of Bergen, State of New Jersey

KALODNER, Circuit Judge. This is an appeal from an order of the District Court of the District of New Jersey denying a writ of habeas corpus. The petitioner was convicted under Revised Statutes of New Jersey 2:103-1, now N.J.S. 2A:85-1, N.J.S.A., for non-feasance in his office as Chief of Police of the Borough of Lodi in the County of Bergen, New Jersey. He was sentenced to a term of six months and fined $1,000. While the case was before this court for consideration the petitioner completed his sentence and was released from custody. Thereupon the Deputy Attorney General of New Jersey moved that the appeal be dismissed as “moot”. Counsel for petitioner resists this motion with the interesting proposition that the additional disability of losing his pension payments has been suffered by the petitioner as a result of the conviction, and that therefore a justiciable controversy exists. Unfortunately for the petitioner we cannot proceed to a determination of his challenging contention because his release from custody compels us to dismiss his appeal, since it is well-settled that in habeas corpus proceedings “without restraint of liberty, the writ will not issue.” McNally v. Hill, 1934, 293 U.S. 131, 138, 55 S.Ct. 24, 27, 79 L.Ed. 238. But compare United States v. Morgan, 346 U.S. 502, 74 S.Ct. 247, 98 L.Ed. 248, discussing the broader scope of coram nobis proceedings. For the reasons above stated the appeal will be dismissed.