Brinkman v. Schubert, 74-C-468
| Decision Date | 28 October 1976 |
| Docket Number | 76-C-247 and 76-C-293.,76-C-107,No. 74-C-468,74-C-468 |
| Citation | 422 F. Supp. 820 |
| Parties | Ronald E. BRINKMAN, Petitioner, v. Dr. Edward F. SCHUBERT, Superintendent, Central State Hospital, Respondent. Wilbur Eugene STREETER, Petitioner, v. Manual CARBALLO, Secretary, Department of Health and Social Services, and Ramon Gray, Warden, Wisconsin State Prison, Respondents. Raymond L. WILLIAMS, Petitioner, v. Ramon GRAY, Respondent. Eugene HARRIS, a/k/a Eugene Dempleton, Petitioner, v. Ramon L. GRAY, Respondent. |
| Court | U.S. District Court — Western District of Wisconsin |
Charles B. Vetzner, Post-Conviction Defense Project, Madison, Wis., for petitioner Brinkman, in No. 74-C-468 and for petitioner Streeter, in No. 76-C-107.
Raymond L. Williams, pro se, in No. 76-C-247.
Eugene Harris, pro se, in No. 76-C-293.
John M. Schmolesky, Asst. Atty. Gen., Bronson C. La Follette, Atty. Gen., Madison, Wis., for respondents.
REPORT and RECOMMENDATION
BARBARA B. CRABB, Magistrate.
These are petitions for writs of habeas corpus. Petitioners assert that they are in state custody in violation of the United States Constitution. 28 U.S.C. § 2254. Although the facts of each petition vary in certain respects, all of the petitioners base their claims for relief upon the contention that the failure of the court to credit them with jail time violates their constitutional rights to due process and to the equal protection of the laws and their right to be free from double jeopardy.
The following matters are not in dispute and the court may properly find them as fact:
PROPOSED FINDINGS OF FACT
Petitioner Brinkman was arrested on or about July 15, 1966, and on the same day, counsel was appointed to represent him in the county court for Dane County, Wisconsin. Petitioner was charged with two counts of rape, in violation of Wis.Stats. § 944.01(1). Petitioner's counsel filed a motion with the court seeking an order committing petitioner to Central State Hospital for a 60-day observation period to determine whether he was competent to stand trial. The motion was granted, bail was set at $15,000 on each of the two counts of rape charged in the complaint, and petitioner was committed to Central State Hospital. Petitioner remained at Central State Hospital until sometime between September 6, 1966, and September 16, 1966, when he was returned to the Dane County Jail. On September 16, 1966, petitioner waived preliminary examination and was bound over to circuit court, where he was arraigned on October 10, 1966. Petitioner pleaded not guilty and not guilty because insane. The court appointed two psychiatrists to examine petitioner, bail was continued, and trial was scheduled for November 14, 1966, but later continued.
On October 25, 1966, petitioner was examined by the two court-appointed psychiatrists who submitted their reports on October 27, 1966, and November 11, 1966. Supplemental reports were sought and were submitted by the psychiatrists on November 9, 1966, and on January 17 and 20, 1967. The defense retained a third psychiatrist who examined petitioner on February 27, 1967, and reported to defense counsel on March 29, 1967.
On May 1, 1967, petitioner appeared in court and changed his plea to a plea of guilty. He was thereupon committed to the Department of Health and Social Services for a presentence social, physical, and mental examination pursuant to the Sex Crimes Act. Upon the advice of the Department that petitioner was not in need of specialized treatment, on June 30, 1967, the court ordered petitioner to be returned to court for further proceedings. Sometime between June 30, 1967, and July 6, 1967, petitioner was returned to the Dane County jail. On July 6, 1967, petitioner was brought into court and was sentenced.
At the sentencing proceeding, the district attorney advised the court that the offenses with which petitioner was charged had occurred a year earlier, stating that the intervening months had been used to afford petitioner examinations by psychiatrists and by the staff of the sex deviate facility. The district attorney and defense counsel both recommended a fifteen-year sentence on each count to run concurrently. The judge imposed the recommended sentence upon petitioner without making any statement concerning petitioner's pretrial period of confinement.
The maximum penalty for rape is imprisonment for not more than thirty years.
STREETER v. CARBALLO, ET AL.
Petitioner Streeter is an inmate of the United States Penitentiary at Leavenworth, Kansas, serving a twenty-five year sentence imposed upon him on May 14, 1973, in the United States District Court for the District of Minnesota. He is also serving a fifteen year concurrent sentence imposed upon him on July 10, 1973, in the circuit court for LaCrosse County, Wisconsin, following his conviction for the crime of kidnapping, a violation of Wis.Stats. § 940.31(1)(a). Petitioner is attacking only the state sentence in the instant petition.
On the day that petitioner was sentenced in LaCrosse County court, the sentencing judge issued a writ of habeas corpus ad testificandum to the LaCrosse County sheriff directing the sheriff to produce petitioner as a material witness at the trial of Roy Harding Gallington. On July 16, 1973, petitioner was transported from LaCrosse to the Wisconsin State Prison to begin service of his state sentence, but was returned to the LaCrosse County jail on the same day when the officials at the Wisconsin State Prison refused to assume custody of defendant. Upon petitioner's return to LaCrosse County, the court remanded his custody to the LaCrosse County jail pursuant to the writ of habeas corpus ad testificandum. Petitioner remained in the LaCrosse County jail until the conclusion of Gallington's trial.
On October 5, 1973, petitioner was transported to the Wisconsin State Prison and began service of his sentence. He received no credit upon his state sentence for the time spent in custody in LaCrosse pursuant to the writ of habeas corpus ad testificandum.
Petitioner filed a petition for a writ of habeas corpus in the state supreme court seeking credit on his state sentence, contending that the failure to credit him with jail time violated his right to due process under the United States Constitution. Petitioner did not argue that the failure to give him jail time credit subjected him to unconstitutional double punishment. The petition was denied on January 23, 1974, in an unpublished opinion.
At the time petitioner was sentenced, the maximum sentence for the crime of kidnapping was fifteen years.
Petitioner Williams is an inmate of the Wisconsin State Prison. He was arrested in Rock County, Wisconsin on March 6, 1973, on a charge of armed robbery in violation of Wis.Stats. §§ 943.32(1) and 943.32(2). He did not make bail and was confined to the Rock County jail until his sentencing on June 29, 1973. At the sentencing, the judge stated on the record that he was "aware of the fact that petitioner has spent three months in jail as a result of this incident, and will take that into consideration." The court then sentenced petitioner to an indeterminate term of not more than five years.
The maximum term to which petitioner could have been sentenced was thirty years.
Petitioner did not appeal to the state supreme court from his conviction or from his sentence.
Petitioner Harris is confined at the Wisconsin State Prison serving three concurrent indeterminate terms of two and one-half years for violation of Wis.Stats. § 161.41(1)(a).
Petitioner was arrested in Dane County, Wisconsin, on January 23, 1974. He did not post bail and remained in jail until his sentencing on June 10, 1974. He received a suspended sentence and was placed on probation for three years. The probation was revoked on October 24, 1974, and petitioner was committed to the Wisconsin State Prison.
Under Wisconsin law at the time petitioner was sentenced, the maximum sentence upon conviction of one count of delivery of heroin was fifteen years.
Following the imposition of sentence, petitioner moved for modification of his sentence or for post-conviction relief. The motion was denied, with no opinion. Petitioner did not appeal to the state supreme court from the denial of his motion.
Wis.Stats. § 973.15 provides that sentences to the state prisons commence at noon on the day of sentence, "but time which elapses after sentence while the defendant is in the county jail or at large on bail shall not be computed as any part of his term of imprisonment."
Petitioners Brinkman, Williams, and Harris contend that it would be futile for them to take their claims to the state supreme court, as that court has determined in other cases that there is no merit to the claim that it is a violation of the constitution to fail to give credit for jail time when the sentence imposed is less than the maximum. State v. Wills, 69 Wis.2d 489, 230 N.W.2d 827 (1974); Hall v. State, 66 Wis.2d 630, 225 N.W.2d 493 (1975); State v. Seals, 65 Wis.2d 434, 223 N.W.2d 158 (1974); Byrd v. State, 65 Wis.2d 415, 222 N.W.2d 696 (1974). Respondents agree that it would be futile for these petitioners to exhaust their state court remedies.
As to petitioner Streeter, respondents Carballo and Gray contend that further resort to the state courts is required; that petitioner Streeter argued in state court that he was denied due process, but has never raised the claim that the court's failure to give him jail time credit deprived him of his right to be free from double jeopardy.
In order to decide whether petitioner Streeter should be required to return to the state courts, it is necessary to review the decisions of the Wisconsin supreme court concerning credit for jail time. The first case to hold that the failure to give credit for jail time might violate the United States Constitution is ...
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