Buie v. King, 304.

• Decision Date: 29 September 1942
• Docket Number: No. 304.,304.
• Citation: 50 F. Supp. 952
• Parties: BUIE v. KING.
• Court: U.S. District Court — Western District of Missouri

50 F. Supp. 952

BUIE v. KING.

No. 304.

District Court, W. D. Missouri, S. D., at Springfield.

September 29, 1942.

Vivian Wycliff Buie, pro se.

Otto Schmid, Asst. U. S. Atty., of Kansas City, Mo., for the government.

VAN VALKENBURGH, United States Circuit Judge, assigned.

This petition for a writ of habeas corpus was addressed to "The Hon. Joseph W. Woodrough, a Judge of the United States, one of the Judges of the United States Circuit Court of Appeals for the Eighth Circuit, or any Judge thereof, in Chambers". Judge Woodrough being then absent from the Circuit, the above named Circuit Judge was assigned to hear the application. The history of this case, as disclosed by undisputed court records, is that on the 19th of April, 1934, in the District Court of the United States for the Northern District of Texas, petitioner was convicted of devising a scheme to defraud others by means of false and fraudulent representations, and of mailing and causing to be mailed, various letters in execution of such scheme. This conviction was upon seven counts, and the judgment entered was as follows: "It is ordered and adjudged that his punishment be and it is hereby fixed at imprisonment in the United States Penitentiary at Leavenworth, Kansas, for a period of five years on the first count, and at imprisonment in the United States Penitentiary for a period of five years on the remaining counts".

Buie appealed to the Court of Appeals for the Fifth Circuit, and this judgment was affirmed, 76 F.2d 848. Thereafter the commitment issued by the clerk of the district court, December 16, 1935, recited: "That the defendant be imprisoned in the United States Penitentiary at Leavenworth, Kansas, for five years on the first count of the indictment, and five years on the remaining counts thereof, said two five year terms to be served consecutively, and the first to begin and date from the date on which defendant is taken into custody on this commitment".

December 18, 1935, pursuant to said commitment, petitioner was delivered to the Warden of the United States Penitentiary at Leavenworth, Kansas; and on or about February 4, 1937, by due order was transferred to the United States Hospital for Federal Prisoners at Springfield, Missouri.

August 1, 1941, petitioner having served more than five years upon the sentence entered by the District Court for the Northern District of Texas, filed his petition for a writ of habeas corpus in the District Court for the Southern Division of the Western District of Missouri, seeking his discharge from imprisonment on the alleged ground that his sentence had been fully served. On hearing, that court held that under the sentence as written and entered, with no express provision that the two five year periods of imprisonment should run consecutively, it is the established rule that such periods are to be served concurrently. In that hearing petitioner was represented by able counsel, and the court said: "Learned counsel for the United States in his brief seems to admit that this is the established rule of law". Citing many federal cases, among which are United States v. Patterson, C.C., 29 F. 775; Daugherty v. United States, 8 Cir., 2 F.2d 691; Id., 269 U.S. 360, 46 S.Ct. 156, 70 L.Ed. 309; Puccinelli v. United States, 9 Cir., 5 F.2d 6; Rice v. United States, 9 Cir., 7 F.2d 319; Fredericks v. Snook, 8 F. 2d 966; Rosso v. Aderhold, 5 Cir., 67 F.2d 315; Zerbst v. Kidwell, 5 Cir., 92 F.2d 756; Aderhold v. McCarthy, 5 Cir., 65 F.2d 452; United States v. Remus, 6 Cir., 12 F.2d 239; Odekirk v. Ryan, 6 Cir., 85 F.2d 313; Biddle v. Hall, 8 Cir., 15 F.2d 840; Buessel v. United States, 2 Cir., 258 F. 811.

The District Court, however, gave consideration to the opinion of the Court of Appeals for the District of Columbia in Downey v. United States, 67 App.D.C. 192, 91 F.2d 223, as announcing this doctrine: "Where a judgment in a criminal case is on its face ambiguous, so that it cannot be determined whether it was intended that the sentences imposed were to be served concurrently or consecutively, upon motion and upon proper showing by written memoranda and by the testimony of the judge imposing the sentence as to his recollection of the facts, the judgment may be corrected to conform with the truth, even if the term has passed in which the judgment was imposed".

Furthermore, that when a judgment has been so corrected, and clearly shows that the sentences imposed upon several counts are to be served consecutively, "then the prisoner may not be discharged in a habeas corpus proceeding, but must serve the sum total of the sentences imposed". The district court inclining to accept as sound this announced doctrine, held that reasonable time and opportunity should be given the original trial court to remove the ambiguity from its judgment. It further held that "the language used in the judgment would support the interpretation that possibly it was intended the defendant should serve two successive five year sentences", and ordered, adjudged, and decreed "that the petitioner be discharged from custody by the respondent, provided, however, that the petitioner shall not be discharged from custody for thirty days from the date of the filing of this order, and provided further, that he shall not at all be discharged by reason of this order if within the period of thirty days a modified judgment imposing upon the petitioner terms of imprisonment to be served consecutively shall be entered in the United States District Court for the Northern District of Texas and a commitment bottomed upon the modified judgment shall have been delivered to the respondent."

Thereupon the United States of America, through the office of the United States Attorney for the Northern District of Texas, filed its application for a writ of habeas corpus ad prosequendum in cause Number 5957, Criminal, in the District Court for the Northern District of Texas, Fort Worth Division, praying that said writ be directed to the Warden of said Medical Center at Springfield, Missouri, to have said defendant Vivian Wycliff Buie personally present instanter before said court to be advised of its order to be made respecting its rule to show cause why the judgment record should not be corrected to conform to the judgment originally pronounced against him. This application was granted and the writ prayed was duly issued and executed by the presence of Buie in said District Court in Texas. Another district judge presided, a petit jury was summoned and sat; the judge who imposed the original sentence testified at the hearing, as also did the United States Marshal who was in the court room, and the deputy clerk who was in attendance upon the court when the original sentence was pronounced.

September 19, 1941, a judgment was rendered correcting that entered April 19, 1934, to show that it thereby fixed imprisonment in the United States Penitentiary at Leavenworth, Kansas, for a period of five years on the first count of the indictment in the cause contained and imprisonment for a period of five years on the remaining counts, to run consecutively to the sentence imposed upon the first count. A commitment for the purpose of carrying into effect the corrected judgment was ordered. This judgment of correction was appealed by Buie to the United States Circuit Court of Appeals for the Fifth Circuit. His counsel contended (1) the evidence does not support the judgment, (2) that certain evidence introduced by the government was inadmissible, (3) that the court lacked jurisdiction of the subject matter, and (4) that the court was without jurisdiction to change the sentence of its judgment after the expiration of the term at which it was rendered. The Circuit Court of Appeals for the Fifth Circuit affirmed the judgment (Buie v. United States, 127 F.2d 367), and perhaps its action might well be left without further discussion since no application has been made to the Supreme Court to review that action by certiorari, and the time for such application has expired.

It appears from the record that scrupulous effort was made to forestall criticism of the procedure employed in the correction of the judgment as suggested in the opinion of the Supreme Court in Walker v. Johnston, 312 U.S. 275, 61 S.Ct. 574, 85 L.Ed. 830, and Downey v. United States, 67 App. D.C. 192, 91 F.2d 223.

In his "reply to respondent's answer and waiver of personal appearance", petitioner "believes that whatever might be adduced by any testimony by anyone is not imperative to a determination of the true issues raised by his petition. He believes this honorable court can determine the really important and material questions raised in his petition without resort to testimony or adducing evidence". He then says: "The most outstanding question raised by the petition is: After the record judgment in a criminal case has been satisfied can the trial court re-imprison the defendant by a nunc pro tunc order amending the original record judgment to insert therein words and figures increasing the substance of the penalty shown by the original record judgment?"

Because in our judgment the foregoing question presents the gist of petitioner's contentions of which this court could entertain jurisdiction in this habeas corpus proceeding, and because of the apparent confusion in decisions which have attended the gradual development of the functions of this statute, we have thought it desirable to add some further consideration to the stated problem. The recognized authority of federal district courts to correct their records and to supply omissions therein has been declared more broadly since the decision in United States v. Patterson, C.C.D.N.J., 29 F. 775. As said, however, in Gagnon v. United States, 193 U.S. 451, 24 S.Ct. 510, 48 L.Ed. 745: "The inherent power which exists in a court to amend its records, and correct mistakes and supply defects and omissions therein, is not a power to create a new record but...