Godwin v. Looney
| Citation | 250 F.2d 72 |
| Decision Date | 27 November 1957 |
| Docket Number | No. 5729.,5729. |
| Parties | Sherman A. GODWIN, Appellant, v. C. H. LOONEY, Warden, United States Penitentiary, Leavenworth, Kansas, Appellee. |
| Court | United States Courts of Appeals. United States Court of Appeals (10th Circuit) |
Sherman A. Godwin, pro se.
Charles W. Ward, Asst. U. S. Atty., Topeka, Kan. (William C. Farmer, U. S. Atty., Topeka, Kan., and Milton P. Beach, Asst. U. S. Atty., Kansas City, Kan., on the brief), for appellee.
Before PHILLIPS, MURRAH and BREITENSTEIN, Circuit Judges.
Godwin, hereinafter called petitioner, filed an application for a writ of habeas corpus. From an order denying him leave to prosecute his application in forma pauperis, petitioner has appealed. In his application for the writ, petitioner alleged these facts:
On July 27, 1953, upon a plea of guilty to offenses against the laws of Arkansas, petitioner was sentenced to consecutive terms of imprisonment aggregating 16 years in the State Penitentiary at Varner, Arkansas. Prior to June 22, 1954, an indictment had been returned against petitioner in the United States District Court for the District of Kansas, charging him with transportation of a stolen motor vehicle in interstate commerce in violation of 18 U.S.C.A. § 2312. On June 22, 1954, in accordance with the provisions of Rule 20 of the Federal Rules of Criminal Procedure, 18 U.S.C.A., petitioner was taken before the United States District Court for the Eastern District of Arkansas and entered his plea of guilty to the indictment. Upon such plea of guilty the Arkansas Federal District Court sentenced him to the custody of the Attorney General for imprisonment for a period of five years to run concurrently with the sentence petitioner was then serving in the Arkansas State Penitentiary. Commitment was issued in accordance with the judgment and sentence.
On December 13, 1956, petitioner was released from the Arkansas State Penitentiary and taken into custody by Federal authorities, who, on December 26, 1956, delivered him to the custody of the Warden of the United States Penitentiary at Leavenworth, Kansas. Since the latter date he has remained in custody at the Leavenworth Penitentiary. In his application for the writ petitioner alleges as his ground for discharge that he has fully served the term of his federal sentence.
We shall assume, but not decide, that petitioner is entitled to credit on his Federal sentence for the period he served in the Arkansas State Penitentiary from June 22, 1954, to December 13, 1956.1 Clearly, he was not entitled to credit for the period he served in the Arkansas State Penitentiary prior to June 22, 1954. The Federal sentence could not run concurrently with the period of imprisonment he served in the Arkansas State Penitentiary prior to the imposition of the Federal sentence. A period cannot be concurrent with a period that anteceded it. If petitioner be credited with the period he served in the state institution from June 22, 1954, to December 13, 1956, and the period he has served in the Leavenworth Penitentiary and eight days for each month of good time credit, under 18 U.S.C.A. § 4161, for both of such...
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