Duke v. Blackwell, 29243 Summary Calendar.
| Decision Date | 20 July 1970 |
| Docket Number | No. 29243 Summary Calendar.,29243 Summary Calendar. |
| Parties | Wade George DUKE, Petitioner-Appellant, v. Olin G. BLACKWELL, Warden, U. S. Penitentiary, Atlanta, Georgia, Respondent-Appellee. |
| Court | U.S. Court of Appeals — Fifth Circuit |
Wade George Duke, pro se.
John W. Stokes, Jr., U. S. Atty., Allen I. Hirsch, Asst. U. S. Atty., Atlanta, Ga., for respondent-appellee.
Before GEWIN, GOLDBERG and DYER, Circuit Judges.
Wade George Duke appeals from the district court's denial of his petition for a writ of mandamus to require federal officials to give him credit for time spent in jail pending appeal. We affirm.1
Appellant was convicted of transporting a stolen motor vehicle in interstate commerce in violation of 18 U.S.C. § 2312 and was sentenced on December 8, 1964 to serve the statutory maximum of five years imprisonment. On the same date appellant executed an election pursuant to Rule 38(a) (2), F.R. Crim.P., not to commence service of sentence.2 The court set bond pending appeal but indigency prevented appellant from posting bond until July 23, 1965. He was returned to custody on June 4, 1966 following affirmance of his conviction.
Appellant now contends that he is entitled to 227 days credit for the time spent in custody pending appeal. This court has considered and rejected this argument several times. In Tandler v. Blackwell, we held:
Under Rule 38(a) (2), F.R. Crim.P., as it existed prior to July 1, 1966, where a convicted defendant appeals and elects not to commence service of his sentence, he cannot receive credit for post-sentence time spent in custody pending the disposition of the appeal. Allocco v. Heritage, 5 Cir. 1962, 310 F.2d 719; Shelton v. United States, 5 Cir. 1956, 234 F.2d 132; United States v. Pruitt, 7 Cir. 1968, 397 F.2d 502.3
Appellant attempts to distinguish his situation because he received the maximum five-year sentence for the offense. He insists that the due process clause prohibits a sentence in excess of the statutory maximum penalty and considering the time served pending appeal, he will serve more than the maximum. This is a distinction without significance. The due process clause is equally effective to free one who is wrongfully imprisoned in excess of the maximum statutory penalty or in excess of a lesser court-determined penalty. The argument raised by appellant, when examined in this light, is precisely that rejected by this court in Tandler.
Affirmed.
1 Pursuant to our Rule 18 this case...
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Jackson v. State of Ala.
...(a) that since he had not opted for a 'working' appeal he was not entitled to credit for post-trial incarceration, citing Duke v. Blackwell, 5 Cir. 1970, 429 F.2d 531; Tandler v. Blackwell, 5 Cir. 1969, 412 F.2d PRE-SENTENCE JAIL TIME The issue common to both appeals then is whether an indi......
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...while Jones concerned prospective Oregon legislation reducing the penalties for first and second degree murder.3 See Duke v. Blackwell (5th Cir. 1970) 429 F.2d 531, 532; Valcarcel v. United States (2d Cir. 1969) 409 F.2d 211, 213; Sobell v. Attorney General (3d Cir. 1968) 400 F.2d 986, 990;......
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...has erred in holding it invalid. See State v. Crockrell, supra; United States v. Cortese, 244 F.2d 872 (2nd Cir. 1957); Duke v. , blackwell, 429 F.2d 531 (5th Cir. 1970). For the reasons assigned, I respectfully ...
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