Downey v. United States

Decision Date22 March 1937
Docket NumberNo. 6824-6826,6851.,6824-6826
Citation91 F.2d 223,67 App. DC 192
PartiesDOWNEY v. UNITED STATES. SAME v. COLPOYS, Marshal.
CourtU.S. Court of Appeals — District of Columbia Circuit

COPYRIGHT MATERIAL OMITTED

Albert A. Stern and Albert Lyman, both of Washington, D. C., for appellant.

Leslie C. Garnett, U. S. Atty., and Allen J. Krouse and Irvin Goldstein, Asst. U. S. Attys., all of Washington, D. C., for appellees.

Before MARTIN, Chief Justice, and ROBB, VAN ORSDEL, GRONER, and STEPHENS, Associate Justices.

STEPHENS, Associate Justice.

Case No. 6851 (No. 1839 below) is an appeal from an order of the District Court of the United States for the District of Columbia filed August 31, 1936. The order overruled the appellant's demurrer to the answer and return of the United States Marshal to a writ of habeas corpus and discharged the writ. Cases Nos. 6824, 6825 and 6826 (Nos. 51,661, 51,662, 51,663 below) are criminal appeals from orders of the same court, filed September 1, 1936, correcting, on motion of the Government, the record of sentences imposed upon the appellant on March 24, 1932. Hearing on the appellant's demurrer in the habeas corpus case and on the motion of the Government to correct the record in the three criminal cases was had before the same justice in the trial court. Although there are two records, one in the habeas corpus case, and another in the three criminal cases combined, all four cases were presented together on appeal under one brief on the part of each party, and as if there were but one record.

The facts are as follows: The appellant pleaded guilty in the trial court to each of three indictments for robbery and on March 24, 1932, was sentenced to a term of four years in each case, and was committed to the penitentiary. But the record of the sentences as entered by the clerk was ambiguous as to whether the sentences were to run concurrently or consecutively, and it was uncertain, therefore, whether the appellant was to serve four years or twelve.1 The appellant was confined in the United States Penitentiary at Atlanta, Georgia. At the end of four years he sought release on a writ of habeas corpus issued by the District Court of the United States for the Northern District of Georgia, Atlanta Division, and was, after a hearing, by that court ordered discharged. The theory of the order of discharge was that "Serious uncertainty in criminal sentences must be resolved in favor of liberty," Aderhold v. McCarthy (C. C.A.) 65 F.(2d) 452, 453, and that the District Court at Atlanta was bound by the record of the sentences ambiguously written, as above explained, in the clerk's record in the District Court of the United States for the District of Columbia. But the district judge at Atlanta, in order that the Government might have opportunity in some direct proceeding to attempt to correct or clarify the ambiguous record, ordered the appellant's discharge delayed for fifteen days.2 Before the end of this period a writ of habeas corpus ad prosequendum was issued by order of the Chief Justice of the District Court of the United States for the District of Columbia, at the instance of the United States Attorney. This writ ordered the United States Marshal for the District of Columbia to produce the appellant before the court in order that he "shall hear and be advised what order or orders this Court may make respecting certain judgments pronounced by this Court on March 24, 1932 . . .," i. e., the sentences ambiguously recorded. Within the fifteen-day period the appellant was thus returned to the jurisdiction of the court which had imposed the sentences, in order that proceedings might be had in his presence for correction of the record of the sentences. Upon his arrival in the District of Columbia the appellant himself obtained a writ of habeas corpus, also issued by order of the Chief Justice of the District Court of the United States for the District of Columbia, directed to the marshal, upon a petition alleging that the marshal was holding the appellant under the commitment of March 24, 1932, and that he had served his sentences. To this writ the marshal made return and answer that he was holding the appellant not under the commitment but under the writ of habeas corpus ad prosequendum. Appellant demurred to the return and answer upon the ground that it was "bad in substance," and for the further reasons that his continued imprisonment was unlawful, the appellant having, under his theory, served the sentences, that there was nothing to correct since the sentences imposed were valid, that the court was without power to correct the sentences, the term at which they were imposed having expired, that laches barred the Government from correcting the record, and that the same justice who imposed the sentences ought not hear the demurrer. This writ was made returnable before another justice, but Justice Proctor, who imposed the sentences, also heard the demurrer.

The errors assigned on the appeal of the habeas corpus case are that the trial court erred in overruling the appellant's demurrer and in discharging the writ and not releasing the appellant, and that Justice Proctor erred in proceeding with the consideration and hearing of the petition for the writ and the subsequent proceedings thereunder since the purpose of the writ was to seek relief from an act done by Justice Proctor in reference to the sentences imposed upon the appellant.

The demurrer was properly overruled and the writ properly discharged. The demurrer admitted the facts stated in the return and answer, and these facts, that the marshal was holding the appellant not under the commitment issued pursuant to the sentences, but under the writ of habeas corpus ad prosequendum, were a valid defense to the appellant's own writ. The justices of the District Court of the United States for the District of Columbia have power to issue writs of habeas corpus. D.C.Code (1929) tit. 18, § 57, 12 Stat. 762, c. 91; 31 Stat. 1200, c. 854, § 68; also D.C.Code (1929) tit. 24, § 201, 31 Stat. 1372, c. 854, § 1143. Section 57 of Title 18, in addition to providing that "Any justice of said court may issue writs of habeas corpus, to inquire into the cause of detention . . ." (the writ of habeas corpus ad subjiciendum, purposed to deliver a prisoner from illegal imprisonment), authorizes the court also to issue "all other writs known in common law and equity practice that may be necessary to the effective exercise of its jurisdiction." The writs of habeas corpus ad prosequendum, testificandum, deliberandum "issue when it is necessary to remove a prisoner, in order to prosecute, or bear testimony, in any court, or to be tried in the proper jurisdiction wherein the fact was committed." Ex parte Bollman and Ex parte Swartwout, 4 Cranch, *75, 98, 2 L.Ed. 554, citing 3 Bl.Comm. *129. Proceedings in the absence of the appellant to correct the record would have been improper, since the ultimate question involved, the extent of valid imprisonment to which he might be subjected, was one of vital legal interest to him. We do not understand the appellant to contend that the writ in question is not broad enough to include bringing him, for proceedings to correct the record, before the court which sentenced and committed him. The proceeding was in aid, in a broad sense a part, of the prosecution "in the proper jurisdiction wherein the fact was committed." The marshal's return was therefore good in substance, and warranted his continuing to hold the appellant for the proceedings in question. The point made by the appellant that the justice who imposed the sentences ought not have considered the petition for the writ is not supported by the record, for, as said above, the writ was issued at the order of the Chief Justice. The point that the justice who imposed the sentences ought not have heard the demurrer is without merit. As above stated the demurrer was to the marshal's return and answer, which was based not on the sentences and commitment but on the writ of habeas corpus ad prosequendum. That writ was not issued by Justice Proctor but by the Chief Justice. In this aspect of the case, therefore, Justice Proctor was not sitting in judgment on any act of his own. As will appear below, we take a different view in respect of the proceedings to correct the record, as such.

In the petition in the criminal cases for the writ of habeas corpus ad prosequendum, the Government had prayed that upon the arrival of the appellant in the District of Columbia a rule issue against him "to show cause why the judgment records of this Court should not be corrected to conform to the judgments originally pronounced against him," and upon the appellant's arrival such a rule was issued, ordering that he "show cause . . . why this Court should not order a correction of the recorded entries of judgments and sentences to conform to the judgments and sentences actually and in fact imposed . . . upon the said Bernard L. Downey, on March 24, 1932, in Criminal Cases 51,661-51, 662-51, 663."3 The Government filed in the same cases, and in terms similar to those of the rule, a motion moving the court to order a correction of the record. To the rule and motion the appellant answered that the motion should be denied for the reasons that there was nothing to correct since the judgments and sentences were valid, that the court was without power to make the changes sought since the term had passed, and that the Government was barred by laches. The appellant also filed in the criminal cases a "Request for Reassignment of Motion." This was directed to the Chief Justice of the trial court and moved him "to reassign to some Justice of this Court other than Justice Proctor, the hearing on the motion herein," upon the ground ". . . That the question at issue is one of determining the validity of a sentence imposed upon petitioner appellant by Justice Proctor...

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