(concurring in result).
While I do not disagree with the substance of the majority’s analysis of the merits of this appeal, I believe that the district court was correct in holding that it was without jurisdiction to adjudicate this habeas application.
The federal habeas corpus statute, 28 U.S.C.A. § 2241, states that “the writ of habeas corpus shall not extend to a prisoner unless * * * (3) he is in custody in violation of the Constitution or laws or treaties of the United States.” As the Supreme Court observed in Car*230afas v. LaVallee, 391 U.S. 234, 88 S.Ct. 1556, 20 L.Ed.2d 554 (1968), this “in custody” requirement is dictated “not only by the repeated references in the statute but also by the history of the great writ.” 391 U.S. at 238, 88 S.Ct. at 1560. I perceive nothing in the Court’s recent decisions, specifically Peyton v. Rowe, 391 U.S. 54, 88 S.Ct. 1549, 20 L.Ed.2d 426 (1968), Sibron v. New York, 392 U.S. 40, 88 S.Ct. 1889, 20 L.Ed.2d 917 (1968) and Carafas, supra, that has diluted this requirement.
In this respect, it is essential to distinguish between the concept of “mootness” as it affects the relief available in a federal habeas proceeding and the “in custody” requirement of the federal legislation as it defines and limits the scope of the federal courts' jurisdiction over habeas corpus. It would be correct to say that the matter of mootness has generally been discarded in habeas cases where the petitioner has been released from custody before an adjudication of his claim. The reasons for this development are twofold: (1) the federal statute, § 2244(b) does not limit the court’s power of relief to a “release from custody,” but speaks also of any “other remedy”; (2) the courts have realistically recognized that the consequences of a criminal conviction survive the period of actual imprisonment.
The abandonment of technical notions of mootness, however, should not blur the real and persisting “in custody” limitation of our congressionally-controlled jurisdiction. It is one thing to say, as the Court did in Carafas, that once federal jurisdiction attaches, it is not dissolved by the expiration of the allegedly unlawful confinement, or as in Sibron, that federal jurisdiction will not be defeated where it is impossible to secure federal review before release from custody because of the brief duration of the sentence, or in Rowe, that a second consecutive sentence awaiting service can be questioned prior to its commencement. But where does federal jurisdiction attach when, as here, the custody has ended long prior to the initiation of federal proceedings? He was unconditionally released from the sentence under attack on May 19, 1967. He began serving the sentence on his second conviction in January, 1968. He did not file the federal habeas petition until August 12, 1968 — over fourteen months after he was released from any incarceration or parole relating to the conviction he now seeks to question.
The underlying rationale of Carafas, Rowe and Sibron was the practical and equitable determination that the writ of habeas corpus must “provide for swift judicial review of alleged unlawful restraints on liberty.” Rowe, 391 U.S. at 63, 88 S.Ct. at 1554. But any judicial sloth in this case is directly attributable to the inaction of the appellant, who made his initial attempt to secure review of his conviction over four and a half years after his sentencing. Because of this delay, the petition for habeas corpus in the district court was filed over one year after appellant’s unconditional release from prison. Under these circumstances, I believe that the court below was without jurisdiction to grant relief.1
It may be that appropriate relief should be provided by the federal courts even in such a case. If that is so, however, it is the Congress which should *231fashion the enlarged jurisdictional framework to accomplish that end.
I would affirm the judgment of the district court that it was without jurisdiction to entertain this action.
. Supporting this view are United States v. Meyer, 417 F.2d 1020, 1022 n. 2 (8 Cir. 1969); Keys v. Dunbar, 405 F.2d 955 (9 Cir. 1969); In re Thoresen, 395 F.2d 466 (1 Cir. 1968) and Allen v. United States, 349 F.2d 362, 363 (1 Cir. 1965). Cf. Cline v. United States, 412 F.2d 323 (5 Cir. 1969). In an opinion which does not discuss the statutory language of “custody,” the Fourth Circuit suggests that “[petitions for the writ need not require adjudication of academic questions, but should be readily entertained if directed to a conviction which currently substantially impinges upon the applicant’s liberty,” Tucker v. Peyton, 357 F.2d 115, 117 (4 Cir. 1966).