Dodge v. Bennett
| Decision Date | 05 August 1964 |
| Docket Number | Misc. No. 114. |
| Parties | Frank Leslie DODGE, Petitioner, v. James V. BENNETT et al., Respondents. |
| Court | U.S. Court of Appeals — First Circuit |
Frank Leslie Dodge, pro se, on his application.
Before WOODBURY, Chief Judge, and HARTIGAN, Circuit Judge.
Frank Leslie Dodge was sentenced under Title 18 U.S.C. § 4208(a) (2) in the United States District Court for the District of Maine on November 1, 1962, on his plea of guilty to the interstate transportation of forged securities in violation of Title 18 U.S.C. § 2314. On November 13, 1962, he was received at the federal penitentiary at Lewisburg, Pennsylvania, and on December 19, about five weeks later, he wrote a letter to the sentencing court asking for reduction of sentence under Criminal Rule 35. For some unexplained reason his letter was held by the penitentiary authorities so long that it was not mailed in time to be received by the court to which it was addressed until January 7, 1963, after the expiration of the sixty days allowed for such motions by the Rule. On the date of receipt, or soon thereafter, the court denied the motion for lack of jurisdiction because it was received and filed out of time. In view of Fallen v. United States, decided by the Supreme Court of the United States on June 22, 1964, 84 S.Ct. 1689, we think this was error.
The instant proceeding began some eighteen months after denial of the motion for reduction of sentence with the filing by Dodge, who is now in the Federal Correctional Institution at Danbury, Connecticut, in the sentencing court on June 10, 1964, of a "Motion To Show Cause" directed against James V. Bennett, Director of the Bureau of Prisons, "for the purpose that this Honorable U. S. District Court determine whether said respondent is within his jurisdiction to delay the normal service of the U. S. MAILS out-bound from the U. S. Penal Institutions under his supervision and control." The motion was accompanied by an affidavit of poverty in accordance with Title 28 U.S.C. § 1915. On June 12, 1964, the court entered an order granting Dodge leave to proceed in forma pauperis on his motion but denying it for lack of jurisdiction. However, in the order the court recited that, to avoid possible prejudice resulting from the delay of the prison authorities in mailing what otherwise would have been a timely request for reduction of sentence under Criminal Rule 35, it had "again" reviewed the transcript of the proceedings at the...
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