Cobb v. Bailey, 72-2303.
| Citation | 469 F.2d 1068 |
| Decision Date | 07 December 1972 |
| Docket Number | No. 72-2303.,72-2303. |
| Parties | Lillian P. COBB, Petitioner-Appellant, v. Melvin BAILEY, Sheriff of Jefferson County, Respondent-Appellee. |
| Court | United States Courts of Appeals. United States Court of Appeals (5th Circuit) |
Robert R. Bryan, Birmingham, Ala., for petitioner-appellant.
William J. Baxley, Atty. Gen., Herbert H. Henry, Montgomery, Ala., for respondent-appellee.
Before COLEMAN, AINSWORTH and DYER, Circuit Judges.
The sole issue in this appeal is whether the Constitution of the United States requires that an Alabama state prisoner who has been sentenced to the maximum term provided by state law shall be allowed full credit for the time detained in jail prior to conviction.
On a federal writ of habeas corpus, the District Court held in the negative. We affirm.
The facts may be stated as follows:
On May 11, 1971, Lillian P. Cobb was arrested for murder in the first degree. On July 16, 1971, the grand jury of Jefferson County, Alabama, indicted her for that she "unlawfully and with malice aforethought killed Hobart Sylvester Christenberry by beating and cutting him with a knife". The state court docket entries included in the record now before us indicate that the case was twice "passed" on July 23 and July 30. On August 6, represented by her present counsel, Cobb was arraigned and entered a plea of not guilty. On August 19, the case was "passed" to November 1. In the meantime, there were various motions for discovery and for other relief. On September 16, 1971, the Alabama court of criminal appeals fixed bail at $5,000. On November 14, the defendant made bond, having spent 128 days in jail prior to being admitted to bail and 187 days prior to actually making bond. There was no allegation in either the state or federal habeas petitions that the appellant was unable to make bond prior to November 14 because of indigency. The contention is simply that because she received the maximum sentence she is entitled to credit for all pre-conviction jail time.
On December 19, 1971, the appellant was convicted of second degree manslaughter, a misdemeanor. She was sentenced to twelve months imprisonment in the county jail, the maximum penalty provided by 14 Alabama Code § 322 (1942). She began the service of this sentence on January 31, 1972.
Alabama law does not authorize credit for pre-conviction jail time, so the state court denied a motion that the defendant be given that credit on her twelve months sentence. Cobb argues that if not given habeas corpus relief she will thus be required to suffer eighteen months imprisonment on account of the alleged homicide, where as the maximum penalty upon conviction is only twelve months. She says this would be a violation of the Federal Constitution.
We note that the Supreme Court has never considered or decided this precise issue.
It was not until 1966 that Congress passed legislation requiring that in the future a federal convict shall be given credit toward the service of his sentence for any days spent in custody in connection with the offense or acts for which the sentence was imposed, Public Law 89-465, § 4, 80 Stat. 217 18 U.S.C., § 3568.
Apparently, such credit was not viewed as an absolute Constitutional right. If it were, then there would have been no necessity for the legislation.
This brings us to the decision of this Court in Gremillion v. Henderson, 5 Cir., 1970, 425 F.2d 1293. It was there stated, without qualification, .
It is now urged that Gremillion is distinguishable from the present case because he had been sentenced to less than the maximum term. The Court, however, intimated no such basis for its declaration.
It is further argued that the decision in Gremillion was eroded by our decision in Hart v. Henderson, 5 Cir., 1971, 449...
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...of the Fourteenth Amendment. The district judge denied the petition holding that under the decisions of this court in Cobb v. Bailey, 5 Cir. 1972, 469 F.2d 1068, and Gremillion v. Henderson, 5 Cir. 1970, 425 F.2d 1293, Jackson was not entitled to credit for pre-sentence jail Cooks' convicti......
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