Allocco v. Heritage, 19626.
| Citation | 310 F.2d 719 |
| Decision Date | 28 November 1962 |
| Docket Number | No. 19626.,19626. |
| Parties | Dominic ALLOCCO, Appellant, v. David M. HERITAGE, Warden, United States Penitentiary, Atlanta, Georgia, Appellee. |
| Court | U.S. Court of Appeals — Fifth Circuit |
Dominic Allocco, pro se.
Charles S. Goodson, U. S. Atty., Burton Brown, Asst. U. S. Atty., Atlanta, Ga., for appellee.
Before TUTTLE, Chief Judge, WISDOM, Circuit Judge, and JOHNSON, District Judge.
On October 31, 1955, Dominic Allocco was sentenced by the United States District Court for the Southern Division of New York to the custody of the Attorney General of the United States to serve ten years. The conviction for which the sentence was imposed was appealed, and on November 9, 1955, Allocco signed an election not to commence the service of sentence.1 The judgment of conviction was affirmed on August 6, 1956. The intervening time of 270 days was spent by Allocco in custody.
On January 25, 1962, Allocco, while incarcerated in the federal penitentiary in Atlanta, filed his petition for writ of habeas corpus in the United States District Court for the Northern District of Georgia, seeking an order requiring the Warden to give him credit on his sentence for the time spent in custody pending his appeal. The petition was denied by the District Court on January 30, 1962. It is from this denial that petitioner now appeals to this Court.
The sole question presented here is whether or not appellant is entitled to credit for the time served from November 9, 1955, to the time of the affirmance of his conviction; there is no question but that he has not been credited with the time.
This precise question was dealt with by this Court in Shelton v. United States, 234 F.2d 132 (5th Cir., 1956). In that case we held:
1 Rule 38(a) (2), Federal Rules of Criminal Procedure, provides: "A sentence of imprisonment shall be stayed if an appeal is taken and the defendant elects not to commence service of the sentence * * *."
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Leyvas v. United States, 20790.
...the warden to give credit on the sentence for time spent in custody pending the appeal, have been uniformly denied. See Allocco v. Heritage, 5 Cir., 310 F.2d 719; Shelton v. United States, 5 Cir., 234 F.2d 132; cf. Comulada v. J. T. Willingham, 10 Cir., 351 F.2d In our case, however, Leyvas......
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United States v. Barbosa
...1968); United States v. Pruitt, 397 F.2d 502 (7th Cir., 1968); Leyvas v. United States, 371 F.2d 714 (9th Cir. 1967); Allocco v. Heritage, 310 F.2d 719 (5th Cir. 1962). While the amendment to Rule 38(a) (2) abolishes the election procedure, it "took effect only on July 1, 1966, see 383 U.S.......
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Tandler v. Blackwell, 26824 Summary Calendar.
...of his sentence, he cannot receive credit for post-sentence time spent in custody pending the disposition of the appeal. Allocco v. Heritage, 5 Cir., 1962, 310 F.2d 719; Shelton v. United States, 5 Cir., 1956, 234 F.2d 132; United States v. Pruitt, 7 Cir., 1968, 397 F.2d 502. Nor do our dec......
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Sobell v. Attorney General of United States
...Comulada v. Willingham, 351 F. 2d 936 (10th Cir.1965), cert. denied, 384 U.S. 973, 86 S.Ct. 1865, 16 L.Ed.2d 684 (1966); Allocco v. Heritage, 310 F.2d 719 (5th Cir.1962); Shelton v. United States, 234 F.2d 132 (5th Rule 38 was promulgated by the Supreme Court and the constitutionality of th......