Sellers v. United States
| Decision Date | 21 December 1967 |
| Docket Number | Civ. A. No. 11239. |
| Parties | Rufus Killis SELLERS, Jr. v. UNITED STATES of America and the Attorney General of the United States et al. |
| Court | U.S. District Court — Northern District of Georgia |
Rufus Killis Sellers, Jr., pro se.
Theodore E. Smith, Asst. U. S. Atty., Atlanta, Ga., for defendant.
Petitioner has filed a civil action seeking a writ of mandamus. It is more properly considered as a petition for a writ of habeas corpus. Petitioner is a prisoner in the Atlanta penitentiary and asks that the United States and its agents be directed to credit him with time spent in jail prior to his conviction. Petitioner was arrested on or about September 21, 1961 and held in jail until he was sentenced on January 8, 1962, approximately 107 days. He received a number of separate sentences growing out of a post office burglary and the subsequent disposal of the proceeds; two consecutive five-year sentences, two more consecutive five-year sentences to run concurrently with the first two, and eight more five-year sentences to run concurrently with the first five years he was in jail. All of the crimes for which he was convicted carried a maximum of five years.
Prison records which have been previously obtained by the court show his release date to be February 29, 1968. No credit appears to have been given him for time spent in jail prior to sentencing.
This particular question has arisen time and time again in this court during the last six months. The problem arises from the fact that in 1960 Congress amended 18 U.S.C.A. § 3568 to provide for the first time that days spent in custody for want of bail set for the offense or acts for which sentence was imposed should be credited toward the service of a subsequent sentence where the statute required the imposition of a minimum mandatory sentence. The Court of Appeals of the District of Columbia first recognized that this created an unconstitutional distinction between prisoners sentenced for one type of offense and those sentenced for another. Stapf v. United States, 125 U.S. App.D.C. 100, 367 F.2d 326 (1966). The question next arose in the Fourth Circuit, which came to the same conclusion. Dunn v. United States, 376 F.2d 191 (1967). Of course, the problem only arises with prisoners sentenced after the effective date of the 1960 amendment (October 2, 1960), because as yet no court has held that there is an absolute right, absent a statute, to credit for time spent in jail before sentence. Before 1960, service of a sentence could only begin at some time after sentencing.
However, when it came to determining how the credit was to be retroactively applied, the two circuits that have ruled on this question have divided. In the Stapf case it was held that there would be a conclusive presumption that credit was given in all cases where it was possible, as a matter of mechanical calculation, that credit could have been given by the sentencing court. As this court understands that rule, this would mean that where the actual sentence plus the total time previously spent in custody in connection with the offense or acts for which the sentence was imposed exceeded the maximum sentence, there is also a presumption that credit was not given. In Dunn, the prisoner was a maximum sentence prisoner (as was Stapf) and the question whether any presumption existed that the trial judge had given credit was not essential to the decision. However, in a subsequent opinion, the Fourth Circuit held that it was open for determination in each case whether credit had been given, regardless of whether the prisoner received the maximum or a lesser term. Padgett v. United States, 387 F.2d 649 (1967).
The Fifth Circuit has not heretofore ruled on any part of this question. The revised opinion in Bryans v. Blackwell, 387 F.2d 764 (1967), now provides some guidance for the courts in this circuit. It basically adopts the view of the District of Columbia Circuit, i. e., that there is a conclusive presumption that credit was given except in cases where the prisoner's sentence and his jail time combined exceed the maximum allowable.
In the present case, this decision is applied. Sellers theoretically could have received 60 years, had all twelve of his five-year sentences been made to run consecutively. However, in view of the fact that he was sentenced to two five-year consecutive sentences with the...
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Lee v. United States, 22391.
...sentences run concurrently does not vitiate the contention that defendant received the maximum prison sentence. Cf. Sellers v. United States, N.D.Ga.1967, 283 F.Supp. 891. It is not easy to infer an intent to give credit for a few days or weeks of pre-sentence custody from a failure to conf......
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Hackworth v. Blackwell
...by the Texas court were maximum sentences, and thus jail time would ordinarily be granted under the rationale of Sellers v. United States, D.C., 283 F. Supp. 891 (1967), aff'd., sub nom. United States v. McCullough, 405 F.2d 722 (5th Cir., January 3, 1969). However, since the third Texas se......
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United States v. McCullough
...as interpreted in Bryans v. Blackwell, 5 Cir., 1967, 387 F. 2d 764. The District Court answered in the affirmative. Sellers v. United States, 283 F.Supp. 891 (N.D.Ga., 1967). We Sellers was arrested and charged with a post office burglary September 21, 1961, and because of his inability to ......
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McCullough v. United States
...therefore, that petitioner received a "maximum" sentence within the scope of Sellers v. United States (Clark), in this court, December 21, 1967, 283 F.Supp. 891, and the rule enunciated in that case applies to petitioner here. Therefore, let defendant show cause within three days as to why ......