Opinion
No. 7862.
December 11, 1964.
James A. McCaffrey, Oklahoma City, Okla., for appellant.
John Quinn, U.S. Atty. (John A. Babington, Asst. U.S. Atty., with him on the brief), for appellee.
Before LEWIS, BREITENSTEIN and HILL, Circuit Judges.
Petitioner is presently confined in the New Mexico State Penitentiary. By a document filed in the United States District Court for the District of New Mexico and designated as an application for a writ of habeas corpus for state prisoners he alleges the fact of such confinement and also that he did, on July 20, 1954, plead guilty to a violation of 18 U.S.C. § 2312 in the District of New Mexico but was surrendered, allegedly unlawfully, to state custody. The application was denied without a hearing.
The judgment is affirmed. If petitioner seeks relief against state custody he must direct his petition against those state officials holding him in restraint. If he seeks declaratory relief against the potentiality of future restraint by federal authority the Great Writ may not be used for such purpose. Osborne v. Taylor, Warden, 10 Cir., 328 F.2d 131, cert. denied, 377 U.S. 1002, 84 S.Ct. 1936, 12 L.Ed.2d 1051; Gailes v. Yeager, Warden, 3 Cir., 324 F.2d 630, cert. denied, 368 U.S. 847, 82 S.Ct. 77, 7 L.Ed.2d 45.