From Casetext: Smarter Legal Research

U.S. BENNETT v. PEOPLE OF THE STATE OF ILL

United States Court of Appeals, Seventh Circuit
May 16, 1966
356 F.2d 878 (7th Cir. 1966)

Summary

holding that the Declaratory Judgment Act cannot be used in another court "as a substitute for a petition to correct a sentence in the court where the sentence was [originally] imposed"

Summary of this case from United States v. Gutierrez

Opinion

No. 15091.

March 1, 1966. Certiorari Denied May 16, 1966. See 86 S.Ct. 1472.

Barney P. Bennett, pro se.

William G. Clark, Atty. Gen., Chicago, Ill., Richard A. Michael, Philip J. Rock, Asst. Attys. Gen., for appellee.

Before HASTINGS, Chief Judge, DUFFY, Circuit Judge, and GRUBB, Senior District Judge.


Plaintiff seeks a declaratory judgment that the indictment under which he was convicted in an Illinois state court is null and void.

Plaintiff contends the indictment is predicated upon burglary and larceny, but that the chattel taken was a traveling bag having a value of $25.

Plaintiff was permitted to proceed in forma pauperis. Although plaintiff has no right to proceed under the Federal Declaratory Judgment Act, we suggest that the essence of the crime of burglary in Illinois is the breaking and entering with felonious intent. People v. Stanton, 16 Ill.2d 459, 158 N.E.2d 47. The value of the property actually stolen is not controlling.

The Declaratory Judgment Act cannot be used as a substitute for appeal or habeas corpus, coram nobis or other such procedures. Forsythe v. State of Ohio, 6 Cir., 333 F.2d 678. It may not be used as a substitute for a petition to correct a sentence in the court where the sentence was imposed or as a substitute for habeas corpus in the district court where the alleged unlawful detention occurs. Clark v. Memolo, 85 U.S.App.D.C. 65, 174 F.2d 978. Olney v. State of Ohio, 6 Cir., 341 F.2d 913 and Christopher v. State of Iowa, 8 Cir., 324 F.2d 180, are in accord.

The order of the District Court sustaining defendant's motion to dismiss the complaint is

Affirmed.


Summaries of

U.S. BENNETT v. PEOPLE OF THE STATE OF ILL

United States Court of Appeals, Seventh Circuit
May 16, 1966
356 F.2d 878 (7th Cir. 1966)

holding that the Declaratory Judgment Act cannot be used in another court "as a substitute for a petition to correct a sentence in the court where the sentence was [originally] imposed"

Summary of this case from United States v. Gutierrez

stating that the Declaratory Judgment Act "may not be used as a substitute for petition to correct a sentence in the court where the sentence was imposed"

Summary of this case from Sisk v. United States
Case details for

U.S. BENNETT v. PEOPLE OF THE STATE OF ILL

Case Details

Full title:UNITED STATES of America ex rel. Barney P. BENNETT, Petitioner Appellant…

Court:United States Court of Appeals, Seventh Circuit

Date published: May 16, 1966

Citations

356 F.2d 878 (7th Cir. 1966)

Citing Cases

United States v. Gutierrez

There we held that "the Declaratory Judgment Act may not be used as a substitute for `habeas corpus, coram…

Wilson v. Walker

But the Declaratory Judgment Act, 28 U.S.C. § 2201, may not be used as a substitute for a habeas corpus…