United States v. Hunter, 9262.

• Decision Date: 13 June 1947
• Docket Number: No. 9262.,9262.
• Parties: UNITED STATES ex rel. QUINN v. HUNTER.
• Court: U.S. Court of Appeals — Seventh Circuit

162 F.2d 644 (1947)

UNITED STATES ex rel. QUINN v. HUNTER.

No. 9262.

Circuit Court of Appeals, Seventh Circuit.

June 13, 1947.

John P. Lulinski, and Joseph E. Tobin, Asst. U. S. Attys., J. Albert Woll, U. S. Atty., and William J. Connor, Asst. U. S. Atty., all of Chicago, Ill., for appellant.

Jacob J. Gordon, Robert B. Johnstone, Robert J. Gorman and C. S. Bentley Pike, all of Chicago, Ill., for appellee.

Before EVANS and MAJOR, Circuit Judges, and LINDLEY, District Judge.

MAJOR, Circuit Judge.

This is an appeal from an order of the District Court of the Northern District of Illinois, Eastern Division, entered December 9, 1946, releasing and discharging the relator Raymond G. Quinn in a habeas corpus proceeding. The cause appears to have had its origin in an order entered by the court October 18, 1946, on the application of Quinn to correct a sentence theretofore imposed in cause No. 32351. Subsequently, this cause appears to have been merged in the habeas corpus proceeding. At any rate, it was tried and disposed of as such. At the inception of the proceeding the court appointed as counsel for Quinn four members of the Bar who have ably and energetically represented him in the court below as well as upon this appeal.

At the threshold we are met with the government's urgent contention that the District Court was without jurisdiction to enter the order complained of. Obviously, this contention must first be disposed of, and in so doing there is no occasion to consider or discuss the factual situation further than as it may relate to such question.

Quinn on March 6, 1934, was sentenced to 10 years on a charge of thefts from hall letter boxes in cause No. 27834 (sometimes referred to as the first sentence) in the District Court of the United States for the Northern District of Illinois, Eastern Division. On February 12, 1940, at which time there remained 1,503 days of that sentence to be served, he was conditionally released (paroled) from the United States Penitentiary at Leavenworth, Kansas, where he had been serving that sentence. On August 3, 1940, Quinn was arrested in Chicago by the police of that city. We digress at this point to make reference to one of the highly controverted issues of fact as to whether Quinn was taken into custody at this time on a parole violator's warrant issued by the United States Parole Board, commanding that Quinn be taken into custody and safely returned to the United States Penitentiary at Leavenworth, Kansas, or whether he was arrested for postal violations committed while on parole. In our view, this issue is irrelevant to the jurisdictional question and may be passed at the present. At any rate, shortly subsequent to his arrest new charges were preferred against him before the United States Commissioner. On these charges an indictment was returned against Quinn August 14, 1940, charging him in three counts, in substance, of stealing from the United States mail.

On August 26, 1940, Quinn entered before Judge Barnes a plea of guilty to this charge, upon which plea the court imposed a sentence and judgment of five years' imprisonment (cause No. 32351, sometimes referred to as the second sentence). The judgment order contained the following provision: "It Is Further Ordered that said term of imprisonment run concurrently with the unexpired portion of the sentence imposed on said defendant Raymond G. Quinn, March 26, A.D.1934 in case No. 27834." A mittimus was issued upon this judgment and Quinn was returned to the Penitentiary at Leavenworth. The main legal controversy on what may be termed the merits of the case is whether he was entitled to serve this five year sentence concurrently with the unserved portion of his first sentence (that part unserved at the time of his arrest while on parole). Obviously, he could not have served all of it concurrently for the reason that a period of five years would have extended beyond the unserved portion of his first sentence (1,503 days). The parties are in sharp disagreement on this issue. If Quinn's contention is sound, then it would appear that the Leavenworth Warden was without authority to hold him after the expiration of this five year sentence. On the other hand, if the government's position is accepted, the Warden was authorized after the expiration of the five year sentence to hold him until he had served the remaining portion of his first sentence. Again we are of the view that the controversy on this issue is irrelevant to the jurisdictional question and need not be decided in connection therewith.

This brings us to the inception of the instant proceedings. As already stated, Quinn on September 25, 1946, filed his motion for the correction of the court's judgment of August 26, 1940 (second sentence). On the basis of this motion to correct sentence the court on October 18, 1946, ordered that a "writ of habeas corpus ad subjiciendum issue for said defendant * * * and that motion to correct sentence heretofore imposed herein be and the same is hereby continued to November 12, A.D.1946 for hearing." The court reserved a ruling on the government's motion to dismiss this writ on the ground that it ran beyond the court's jurisdiction. On November 7, 1946, the court issued a writ of habeas corpus ad testificandum to the Warden at Leavenworth, making it returnable on the same day as the writ of habeas corpus ad subjiciendum previously issued. This writ was directed to the United States Marshal for the Northern District of Illinois, who obtained Quinn from the Warden at Leavenworth, "to testify in the case of United States vs. Raymond G. Quinn No. 32351 the proceeding to correct the judgment and that at the termination of said proceedings * * * he return the said Raymond G. Quinn to the Warden of the United States Penitentiary at Leavenworth, Kansas, under safe and secured conduct." Pursuant to the directions of this writ, the United States Marshal procured Quinn for the purpose of so testifying.

The court, treating the motion to correct sentence as a criminal case, then ordered subpoenas duces tecum on James V. Bennett, Director of the Bureau of Prisons, Washington, D. C., Walter A. Hunter, Warden, United States Penitentiary, Leavenworth, Kansas, and T. Weber Wilson, Edward P. Reedy and Douglas P. Lucas, Members of the Parole Board, Washington, D. C., commanding all said parties to appear for the purpose of testifying and giving evidence in the case of United States v. Quinn, and to bring with them all memoranda, documents, records and other papers in their custody and control relating to the incarceration of the defendant Quinn. After Quinn had been produced in court by the United States Marshal pursuant to the writ of habeas corpus ad testificandum, and James V. Bennett, Director of the Bureau of Prisons, and Warden Hunter from Leavenworth had appeared in court pursuant to the subpoenas duces tecum, the court issued writs of habeas corpus ad subjiciendum and had each served with said writs while in the courtroom. Bennett filed a return stating that he did not have Quinn in his custody and that the Warden at Leavenworth who had Quinn legally in his custody had surrendered him to the United States Marshal for the Northern District of Illinois, pursuant to a writ of habeas corpus ad testificandum issued by Judge Barnes, and that Quinn was then in the courtroom, pursuant to that writ. Warden Hunter filed a return stating that he did not presently have custody or control of the body of Quinn, that he had surrendered him to the United States Marshal for the Northern District of Illinois, pursuant to a writ of habeas corpus ad testificandum, which writ directed that, at the termination of the proceedings before Judge Barnes, the Marshal return Quinn to the Warden of the United States Penitentiary at Leavenworth under safe and secure conduct, and further that the said Quinn was present in the courtroom at the time of the issuance of the writ of habeas corpus to which his return was made.

We are of the view that the court was without jurisdiction to entertain Quinn's motion to correct the judgment entered August 26, 1940. We think the five year sentence was valid; in fact, no contention is made to the contrary. The motion to correct was made September 25, 1946, after many terms of court had come and gone. Prior to March 21, 1946, the effective date of the Rules of Criminal Procedure, 18 U.S.C.A. following section 687, it was well settled that the court was without authority to vacate or modify a valid judgment subsequent to the expiration of the term at which it was entered. United States v. Mayer, 235 U.S. 55, 67-69, 35 S. Ct. 16, 59 L.Ed. 129; Robinson v. United States, 10 Cir., 147 F.2d 915; Gilmore v. United States, 10 Cir., 129 F.2d 199. Assuming, without deciding, that the Rules of Criminal Procedure are applicable to a motion directed at a judgment entered prior to their effective date, we are of the further view that they are of no aid to the court's jurisdiction in the instant matter. As stated in United States v. Smith, 67 S.Ct. 1330, 1333: "The Rules, in abolishing the term rule, did not substitute indefiniteness. On the contrary, precise times, independent of the term, were prescribed. The policy of the Rules was not to extend power indefinitely but to confine it within constant time periods."

Treating the judgment sought to be modified as imposing a legal sentence, we think that any modification is limited by Rule 35, entitled "Correction or Reduction of Sentence." This rule, so far as material to such a situation, provides: "The court may reduce a sentence within 60 days after the sentence is imposed, or within 60 days after receipt by the court of a mandate issued upon affirmance of the judgment or dismissal of the appeal, or within 60 days after receipt of an order of the Supreme Court denying an application for a writ of certiorari."

The court in the recent Smith case, supra, held that the trial court was...