United States Ex Rel. Willis E. Smith v. Walter B. Martin, Warden of Attica Prison

Relator overlooks the fact, stated in our original opinion, that even if one of his prior convictions were set aside, and he were resentenced as a second rather than a third felony offender, the minimum period to which the judge could sentence him under New York Penal Law, McKinney’s Consol.Laws, c. 40, § 1941, would be five years, which would expire in 1958.

Relator appears correct in his contention that the state courts in New York regard habeas corpus as an appropriate remedy to one sentenced as a third or fourth felony offender when he was in fact only a second or third offender, even…