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Ward v. State of Oklahoma

United States Court of Appeals, Tenth Circuit
May 4, 1967
376 F.2d 847 (10th Cir. 1967)

Opinion

No. 9198.

May 4, 1967.

Louis A. Morrone, Englewood, Colo., for appellant.

Charles L. Owens, Asst. Atty. Gen., of Oklahoma, (G.T. Blankenship, Atty. Gen., with him on the brief), for appellee.

Before PICKETT and SETH, Circuit Judges, and CHRISTENSEN, District Judge.


In 1965, Ward was convicted in the District Court of Tulsa County, Oklahoma, of the crime of murder in the first degree, and sentenced to life imprisonment. This conviction is presently pending on appeal in the Oklahoma Criminal Court of Appeals. Ward, now in custody of the Warden of the Oklahoma State Penitentiary, instituted this habeas corpus proceeding seeking an order declaring a 1934 judgment and sentence for armed robbery to be null and void. It is alleged that the 1934 conviction was prejudicially used by the prosecution to secure Ward's conviction for murder in 1965. The trial court dismissed the habeas corpus proceeding without a hearing.

It is conceded that the 1934 sentence has been served and that Ward's detention is under the 1965 life sentence. Habeas corpus is available only to a prisoner who is in custody pursuant to the court judgment which is challenged by the proceedings. 28 U.S.C. § 2254. Parker v. Ellis, 362 U.S. 574, 80 S.Ct. 909, 4 L.Ed.2d 963; United States ex rel. McDonald v. Commonwealth of Pennsylvania, 3 Cir., 343 F.2d 447; Douglas v. Green, 6 Cir., 333 F.2d 73, cert. denied 379 U.S. 862, 85 S.Ct. 126, 13 L.Ed.2d 66; United States v. Bradford, 2 Cir., 194 F.2d 197, cert. denied 343 U.S. 979, 72 S.Ct. 1079, 96 L.Ed. 1371. If Ward's 1934 conviction was prejudicially used in the 1965 murder trial, it is an error to be reviewed on appeal, and not by habeas corpus.

Affirmed.


Summaries of

Ward v. State of Oklahoma

United States Court of Appeals, Tenth Circuit
May 4, 1967
376 F.2d 847 (10th Cir. 1967)
Case details for

Ward v. State of Oklahoma

Case Details

Full title:Arley WARD, Appellant, v. STATE OF OKLAHOMA, Appellee

Court:United States Court of Appeals, Tenth Circuit

Date published: May 4, 1967

Citations

376 F.2d 847 (10th Cir. 1967)

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His present detention is under the sentences received by him in 1970. In Ward v. State of Oklahoma, 376 F.2d…

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