United States ex rel. Lyons v. Ragen

SPARKS, Circuit Judge. Appellant, a prisoner in the custody of the warden of the Illinois State Penitentiary under sentence of imprisonment for one year to life on conviction of burglary, appeals from an order of the District Court denying his petition for discharge on writ of habeas corpus. The only question sought to be presented by the petition for the writ was whether the state of Illinois had authority, under the statute pertaining to parole outside the state, in force in 1938, the year of petitioner’s conviction and sentence (Ill.R.S. Chap. 38, § 808), to revoke his so-called “banishment parole” and cause his return to Illinois for the purpose of serving further time in the penitentiary on his sentence. The same question was decided adversely to petitioner’s contention by the Illinois Supreme Court in People ex rel. Ross v. Becker, 382 Ill. 404, 47 N.E.2d 475. See also Whitten v. Bennett, 7 Cir., 141 F.2d 295; United States ex rel. Kimler v. Ragen, 7 Cir., 147 F.2d 137. The District Court refused to issue a certificate of probable cause, as prayed by petitioner to enable him to prosecute his appeal to this court as required by 28 U.S.C.A. § 466. We therefore have no jurisdiction to consider the appeal, and it must be, and is hereby, dismissed.