387 F.2d 764 (5th Cir. 1967), 24641, Bryans v. Blackwell

Docket Nº24641.
Citation387 F.2d 764
Party NameRaymond Luther BRYANS, Jr., Appellant, v. O. G. BLACKWELL, Warden, United States Penitentiary, Atlanta, Georgia,Appellee.
Case DateDecember 20, 1967
CourtUnited States Courts of Appeals, Court of Appeals for the Fifth Circuit

Page 764

387 F.2d 764 (5th Cir. 1967)

Raymond Luther BRYANS, Jr., Appellant,

v.

O. G. BLACKWELL, Warden, United States Penitentiary, Atlanta, Georgia,Appellee.

No. 24641.

United States Court of Appeals, Fifth Circuit.

December 20, 1967

Raymond Luther Bryans, Jr., pro se.

Theodore E. Smith, Asst. U.S. Atty., Atlanta, Ga., for appellee.

Before TUTTLE, BELL and SIMPSON, Circuit Judges.

TUTTLE, Circuit Judge:

The previous opinion of this court, dated October 13, 1967, is withdrawn.

This is an appeal from a judgment entered by the district court for the Northern District of Georgia under three numbered cases which resulted from a careful analysis by the trial court of some twelve petitions for habeas corpus, mandamus or other relief filed by the prisoner within less than a month between January 19 and February 10, 1967. Our reading of the petitions and the orders of the trial court discloses that the trial judge patiently, and with accuracy culled out of the repetitive filings the issues sought to be raised by the prisoner. In case number 10688 the court dealt with the issue of whether the prisoner had a valid 'election not to serve' under old Rule 38(a)(2), outstanding in the Northern District of California. We affirm, as correct, the trial court's disposition of this issue. In the district court case number 10760,

Page 765

petitioner alleged that since his initial arrest he had been in custody for a period longer than his present two-year sentence, and should therefore be entitled to immediate release. It is for the purpose of discussing this contention that this present opinion is written. It will be discussed fully below.

The remaining petitions and matters brought up at the hearing in the district court on February 23, 1967, relating to events at Atlanta Penitentiary, were handled by the trial court as a single application under number 10775. We agree with the disposition made by the trial court of these matters.

As indicated, in his complaint under the district court case number 10760, petitioner contends that since his initial arrest, he has been in custody for a period longer than his present two-year sentence, and should therefore be entitled to immediate release. In fact the trial court said, in its opinion, 'While it appears almost incredible to this court that the prisoner has been in custody almost three years now, with only nine months effective service, it appears that under the law as it existed prior to the 1966 reform, the Attorney General has correctly concluded that Bryans has not served his full sentence, and his present release date, with all good time applying, is January 2, 1968.'

The problem here arises from the fact that much of the time served by Bryans was under a sentence of the District Court for the Northern District of Georgia, which was later vacated after the hearing of a motion under 28 U.S.C.A. § 2255. Bryans is now serving in the federal penitentiary under two separate two-year sentences, the second to run concurrently with the first, both sentences imposed by the United States District Court for the Northern District of California, on the 15th day of September, 1966, to charges of interstate transportation of falsely made securities, in violation of 18 U.S.C.A. § 2314. (The maximum penalty under each charge is 10 years imprisonment.) We take it that the convictions by the California court are on the 'same or related charges,' because the United States, in its brief filed here, poses the question 'whether appellant is entitled to credit upon his present sentence for him in custody...

To continue reading

Request your trial