Cummings v. Bennett

• Citation: 324 F.2d 1
• Decision Date: 07 November 1963
• Docket Number: No. 17488.,17488.
• Parties: Clark Sumner CUMMINGS, Petitioner, v. John E. BENNETT, Warden, Iowa State Penitentiary, Respondent.
• Court: United States Courts of Appeals. United States Court of Appeals (8th Circuit)

324 F.2d 1 (1963)

Clark Sumner CUMMINGS, Petitioner, v. John E. BENNETT, Warden, Iowa State Penitentiary, Respondent.

No. 17488.

United States Court of Appeals Eighth Circuit.

November 7, 1963.

Before JOHNSEN, Chief Judge, and MATTHES, Circuit Judge.

PER CURIAM.

Petitioner, an Iowa prisoner, makes application to have a certificate of probable cause issued by a judge of this Court to enable him to take an appeal from the District Court's denial and dismissal of his petition for a writ of habeas corpus. His petition was the sixth attempt made by him to have the District Court for the Southern District of Iowa release him from his incarceration.

His claim is that he is being subjected to double jeopardy, in that the sentence which he is being made to serve constitutes a second commitment and imprisonment for his offense. He alleges that a judgment of conviction and sentence was entered against him in 1946, which provided that "he is hereby sentenced and committed to the Iowa State Penitentiary at Fort Madison, Iowa, for the period of his natural life"; that in 1949 another judgment was entered against him for the same offense, which provided that "he is hereby sentenced and committed to the Iowa State Men's Reformatory at Anamosa, Iowa, * * * for the term of his natural life"; and that when he thereupon was taken from the State Penitentiary to the Men's Reformatory, the effect was to release and discharge him from the judgment of sentence and commitment to the State Penitentiary and to make operative against him a new judgment of sentence and commitment, thus subjecting him to a second punishment.

The fallacy in this is what the state court did in 1949 was not to render another judgment of conviction and sentence against petitioner, but merely, as recited in its order, to make "an amendment to the commitment heretofore issued", leaving standing the conviction and sentence-term originally imposed and only changing the place designated in the commitment for his confinement from the State Penitentiary to the Men's Reformatory. The amendment was made pursuant to the mandate of the Supreme Court of Iowa in Cummings v. Lainson, 239 Iowa 1193, 33 N.W.2d 395, cert. denied 336 U.S. 944, 69 S.Ct. 811, 93 L.Ed. 1101, which was a habeas corpus proceeding brought by petitioner in the state court involving a similar contention as here.

The Iowa Supreme Court held that the sentencing court had committed only an "irregularity" or error in the institutional designation made, in view of the provision of § 789.16, Iowa Code 1946, that "any male person who shall be committed to the penitentiary, except those convicted of murder, treason, sodomy, or incest, and who at the time of commitment is between the ages of sixteen and thirty years, and who has never before been convicted of a felony, shall...