395 F2d 754 O'shea v. United States

395 F.2d 754

Patrick J. O'SHEA, Petitioner, Appellant,
UNITED STATES of America et al., Respondents, Appellees.

No. 7088.

United States Court of Appeals First Circuit.

June 5, 1968.

Patrick J. O'Shea on brief pro se.

Paul F. Markham, U. S. Atty., and Edward J. Lee, Asst. U. S. Atty., on brief for United States of America, appellee.

Elliot L. Richardson, Atty. Gen., and Willie J. Davis, Asst. Atty. Gen., on brief for Palmer C. Scafati, Warden, appellee.

Before ALDRICH, Chief Judge, McENTEE and COFFIN, Circuit Judges.


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Petitioner O'Shea seeks a writ of habeas corpus directed against the United States Marshal,* alleging wrongful custody under the following circumstances. While O'Shea was in state confinement in the state of New York a writ of habeas corpus ad prosequendum was issued by the District Court for the District of Massachusetts and he was brought thereunder to Massachusetts to stand trial in the district court under an indictment. He was tried and convicted and his appeal is presently under advisement. While in custody after sentence he filed the present petition. The district court dismissed, and O'Shea appeals.


The issues, somewhat elaborately argued, can be simply disposed of. In the first place, the presentence custody was not open to attack. Carbo v. United States, 1961, 364 U.S. 611, 81 S.Ct. 338, 5 L.Ed.2d 329. But even if such prior custody had been illegal, custody became valid under the sentence. Frisbie v. Collins, 1952, 342 U.S. 519, 72 S.Ct. 509, 96 L.Ed. 541.





The writ is also sought against the Warden of a Massachusetts jail in which petitioner, at the time of filing the petition, was being lodged by the Marshal. Custody is in the Marshal, and the Warden was improperly named