Opinion
Nos. 5229, 5233.
March 17, 1944.
No. 5229:
Appeal from the District Court of the United States for the Eastern District of Virginia, at Richmond; Robert N. Pollard, Judge.
No. 5233:
Appeal from the District Court of the United States for the Southern District of West Virginia, at Bluefield; Ben Moore, Judge.
Habeas corpus proceedings by the United States of America, on the relation of William Henry Lohrberg, Sr., against Claude O. Nicholson, Warden, and Francis Biddle, Attorney General, and by the United States of America, on the relation of Ralph Falbo, Sr., against M.L. Kennedy, Superintendent, and Francis Biddle, Attorney General. From orders denying writs of habeas corpus, the relators appeal.
Affirmed.
Hayden C. Covington, of Brooklyn, N.Y. (Horace S. Meldahl, of Charleston, W. Va., Thomas H. Stone, of Richmond, Va., and Roy A. Swayze, of Arlington, Va., on the brief), for appellants.
George R. Humrickhouse, Asst. U.S. Atty., of Richmond, Va. (Sterling Hutcheson, U.S. Atty., of Richmond, Va., on the brief), for appellees Claude O. Nicholson and others.
Herman L. Bennett, Asst. U.S. Atty., of Charleston, W. Va. (Leslie E. Given, U.S. Atty., of Charleston, W. Va., on the brief), for appellees M.L. Kennedy and others.
Before PARKER, SOPER, and DOBIE, Circuit Judges.
These are appeals from orders denying writs of habeas corpus. The prisoner in No. 5233 is the Nick Falbo whose conviction of violation of the Selective Training and Service Act of 1940, 50 U.S.C.A.Appendix, § 301 et seq., was affirmed by the Supreme Court in Falbo v. United States, 320 U.S. 549, 64 S.Ct. 346. It is clear that the judgment which was there upheld cannot be collaterally attacked on the same grounds by resort to habeas corpus. Falbo is imprisoned, not under the Selective Service Act, but under the judgment of a court. Nothing is shown which would justify the court in ordering the release of the prisoner notwithstanding that judgment. Sanderlin v. Smyth, Cir., 138 F.2d 729. The same principles are applicable in the case of the petitioner Lohrberg.
Affirmed.