Bailey v. Ciccone, 76CV295-S.

Decision Date22 September 1976
Docket NumberNo. 76CV295-S.,76CV295-S.
Citation420 F. Supp. 344
PartiesBilly Joe BAILEY, Petitioner, v. Dr. P. J. CICCONE, Director, United States Medical Center for Federal Prisoners, Springfield, Missouri, Respondent.
CourtU.S. District Court — Western District of Missouri

R. Steven Brown, Asst. Federal Public Defender, Springfield, Mo., for petitioner.

David H. Jones, Asst. U. S. Atty., Spring-field, Mo., for respondent.

ORDER DISMISSING PETITION FOR HABEAS CORPUS

COLLINSON, District Judge.

Petitioner's claim is that he is entitled to discharge from a federal sentence he is now serving at the United States Medical Center in Springfield, Missouri on September 13, 1976, and that the Bureau of Prison authorities have erroneously computed his discharge as of May 30, 1977. Since these allegations, if true, would create a case of "special urgency" within the meaning of Willis v. Ciccone, 506 F.2d 1011 (8th Cir. 1974), an evidentiary hearing was set without requiring the petitioner to exhaust his administrative remedies.

At this hearing the following facts appeared:

1. On March 27, 1974 the petitioner received a three-year sentence in the United States District Court for the Northern District of Alabama. On that date the petitioner was serving a state sentence in Indiana and the district court sentence was made consecutive to the sentence he was then serving in Indiana.

2. Immediately after receiving the United States sentence, the petitioner was returned to the state institution in Indiana in which he was serving his sentence, and, admittedly, his federal sentence did not start running at that time.

3. The petitioner was released on May 24, 1974 from Indiana custody and was not picked up by federal authorities at the time of his release.

4. Petitioner went immediately to Gasden, Alabama, in the Northern District of Alabama, and lived there under his own name with no attempt to hide his identity.

5. On March 31, 1975 petitioner was sentenced to three two-year terms in the state court of Alabama and commenced serving these sentences.

6. On June 16, 1975 the federal authorities filed a detainer with the Alabama prison authorities on the petitioner.

7. On January 7, 1976 petitioner filed a section 2255 application in the United States District Court for the Northern District of Alabama to set aside the March 27, 1974 three-year sentence.

8. On January 28, 1976 the original sentencing court in the Northern District of Alabama dismissed the section 2255 motion, and on the same date entered an order amending the sentence of March 27, 1974 to reduce that sentence to one year and eight months and make it concurrent with the three two-year sentences the petitioner was then serving in the state prison in Alabama.

9. The petitioner was released March 1, 1976 from Alabama custody and was taken into custody at that time by the United States marshal service, and has been in continual custody of the United States since that date on the sentence in the case that he was originally sentenced in on March 27, 1974.

10. On June 29, 1976 the Honorable Frank H. McFaddin, the judge in the Northern District of Alabama who imposed the original sentence, and who entered the order reducing that sentence wrote a letter to the petitioner's attorney, who filed the section 2255 motion, and stated that the sentence imposed on January 28, 1976 was effective and commenced to run on that date.

11. The Bureau of Prisons is now computing the petitioner's sentence as a one-year eight-month sentence commencing January 28, 1976, and under that computation, the petitioner is not eligible for release until May, 1977.

The question of whether or not the federal authorities had filed a detainer with the Indiana authorities was not resolved at the hearing. Because of the short notice the Government had of this hearing, the evidence was not available. Leave was granted at this hearing to the Government to furnish documentary evidence on this question at a subsequent date and the Government has now filed with the Court a copy of a detainer, dated February 21, 1974, addressed to the Records Office, Indiana State Farm, Green Castle, Indiana. This copy, as filed, does not establish conclusively that the detainer was filed with the Indiana authorities. However, this Court has determined that, under the authorities, the filing or failure to file the detainer would not, under the facts of this case, be a determinative factor.

Petitioner now contends that the order of January 28, 1976, "amending" and reducing the sentence of March 27, 1974, was void, and that his original sentence of three years is the sentence under which his time must be computed. Petitioner couples with this a claim that this sentence must be computed as commencing on May 24, 1974, the date he was released from Indiana state custody, and "without his fault" was not taken into custody by federal officials.

This Court must concur with the contention of the petitioner that the "amendment" of January 28, 1976 was void. The sentencing court entered this order on his own motion in order to correct what that court thought was an injustice to the petitioner. However humane the reasons, the Court of Appeals of this circuit has directly held, in the case of United States v. Regan, 503 F.2d 234 (8th Cir. 1974), that the sentencing court had no jurisdiction to modify the sentence after the expiration of 120 days, the period prescribed in Rule 35 of the Federal Rules of Criminal Procedure. In that case the trial court did not attempt to shorten the sentence but simply added an "(a)(2)" provision to the sentence previously imposed. The Court of Appeals held that this attempt to change the sentence, in order to grant earlier eligibility for parole, amounted to a modification and was void. Following this precedent, this Court must hold that the amendment of January 28, 1976 is void.

However, the Court finds no grounds for holding that the petitioner is entitled to have credit on the original sentence from May 24, 1974, the date he was released from custody by the Indiana state authorities by reason of the expiration of the Indiana state sentence. We start from the statutory provision, § 3568, Title 18, U.S.C.A.:

"The sentence of imprisonment of any person convicted of an offense shall commence to run from the date on which such person is received at the penitentiary, reformatory, or jail for service of such sentence. The Attorney General shall give any such person credit toward service of his sentence for any days spent in custody in connection with the offense or acts for which sentence was imposed. As used in this section, the term `offense' means any criminal offense, other than an offense triable by court-martial, military commission, provost court, or other military tribunal, which is in violation of an Act of Congress and is triable in any court established by Act of Congress.
"If any such person shall be committed to a jail or other place of detention to await transportation to the place at which his sentence is to be served, his sentence shall commence to run from the date on which he is received at such jail or other place of detention.
"No sentence shall prescribe any other
...

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    ...Cir. May 20, 1991) (unpublished); Sterling v. Maggio, 505 F. Supp. 1111 (M.D. La. 1981); Farley, 469 F. Supp. 796; Bailey v. Ciccone, 420 F. Supp. 344 (W.D. Mo. 1976); Esquivel v. Estelle, 426 F. Supp. 619 (W.D. Tex. 1976), aff'd, 547 F.2d 309 (5th Cir. 1977); Clifton v. Beto, 298 F. Supp. ......
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