Bryans v. Blackwell

• Decision Date: 20 December 1967
• Docket Number: No. 24641.,24641.
• Parties: Raymond Luther BRYANS, Jr., Appellant, v. O. G. BLACKWELL, Warden, United States Penitentiary, Atlanta, Georgia, Appellee.
• Court: U.S. Court of Appeals — Fifth Circuit

387 F.2d 764 (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The previous opinion of this court, dated October 13, 1967, is withdrawn.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, 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 served prior to being sentenced, or time served pursuant to a sentence now vacated, appellant having been thereafter convicted on the same or related charges." (Emphasis added.) It is clear that if appellant was legally entitled to have credit for the time he served under the vacated sentence, then he was entitled to an order for his immediate release in the district court at the time of his hearing there.

Bryans' sentences under which he is now serving were entered on September 15, 1966. There is no doubt about the provisions of statute law, then in effect, which do not require that credit be allowed for time in custody, either prior to the imposition of the sentence or while serving under a vacated sentence, except where the sentence was one imposed under a statute providing for a minimum mandatory sentence. See 18 U.S.C.A. § 3568 (1964).

Before 1960, there was no statutory provision that dealt with credit for time served before trial for want of making bail, nor under either a vacated sentence or time served after conviction pending appeal where there was an election not to commence serving. Nevertheless, it is universally known that wherever a later conviction resulted from the same state of facts, and the trial court imposed sentence, the trial judge frequently took into consideration the time actually served by the accused that should, in fairness, really be counted towards the punishment he was then meting out by way of a new sentence. There was one class of cases, however, as to which district judges thought they could not legally give effect to any such considerations. This was the class of offenses for which Congress had provided minimum mandatory sentences. As to these the trial courts thought they were without power to reduce the sentence below the statutory minimum by giving credit for time theretofore served. In that type of case, therefore, (a very substantial number, incidentally, because of the large number of narcotics convictions) it was apparent that persons entering upon a sentence were frequently denied credit for time they had already been in custody. Thereupon Congress amended Section 3568 by adding the following language:

"The Attorney General shall give any such person the defendant being sentenced credit towards service of his sentence for any days spent in custody prior to the imposition of sentence by the sentencing court for want of bail set for the offense under which sentence was imposed where the statute requires the imposition of a minimum mandatory sentence."

The adoption of this amendment would have placed all defendants on a parity with respect to the matter in issue but for one fact — that is, the assumption that all judges in all cases, except those involving minimum mandatory sentences, were actually allowing such credit, was not entirely correct. For instance, as appeared in the case of Stapf v. United States, (D.C.Cir., 1966) 367 F.2d 326, and Dunn v. United States, (4 Cir., 1967) 376 F.2d 191, there were cases in which district judges were giving maximum sentences permitted under the statute for a particular offense, notwithstanding prior custody of the accused resulting from his inability or failure to make bond. In such a case it was obvious that the person, sentenced under a non-mandatory minimum requirement, was being denied a right afforded the defendant sentenced under a minimum mandatory statute. In addition to the cases where it was apparent that no credit was being allowed because the defendant ended up with the maximum sentence permissible, there were doubtless cases in which the trial court sentenced the accused person with every intention of sentencing him as he would have on the initial conviction and without intending to give him any credit for time previously served. Thus it turned out that the 1960 amendment seeking to give equal rights to those persons convicted and sentenced to minimum mandatory sentences was in some cases giving them benefits not available as a matter of right to persons convicted of crimes not thought by Congress to be sufficiently grave as to require a mandatory minimum sentence.

In light of this situation, Congress again amended the statute, when in 1966 it adopted the Bail Reform Act. Section 4 of that Act¹ now provides automatic administrative credit to all defendants sentenced after its effective date. This provision is "the Attorney General shall give any such person...