Gomori v. Arnold
Decision Date | 30 March 1976 |
Docket Number | No. 75-2066,75-2066 |
Citation | 533 F.2d 871 |
Parties | Steve GOMORI, Jr., Appellant, v. Floyd ARNOLD et al. |
Court | U.S. Court of Appeals — Third Circuit |
Steve Gomori, Jr., pro se.
S. John Cottone, U. S. Atty., Laurence M. Kelly, Asst. U. S. Atty., Scranton, Pa., for appellee.
Before SEITZ, Chief Judge, and VAN DUSEN and WEIS, Circuit Judges.
This appeal challenges the district court's denial of a federal prisoner's petition for a writ of habeas corpus, contending that the Warden of the U.S. Northeastern Penitentiary * has erroneously computed his effective release date under a federal sentence imposed on September 8, 1969, by the United States District Court for the Northern District of West Virginia. We affirm.
The chronology of four separate sentences the petitioner has been serving since April 29, 1970, is as follows:
1. Sentence of five to 15 years on February 6, 1969, by Pennsylvania state court with release on bail pending appeal.
2. Sentence of six years on September 8, 1969, by West Virginia federal court, with release on bail pending appeal. 1
3. Sentence of one to 10 years on April 29, 1970, by Ohio state court and commitment for service of that sentence in Ohio institution on that date.
4. Concurrent sentences of three and five years subject to 18 U.S.C. § 4208(a)(2) on January 19, 1971, by United States District Court for the Northern District of Ohio. 2
On April 29, 1971, petitioner was paroled from his Ohio state sentence and transferred to Pennsylvania to begin service of the sentence described under 1 above. He was released by the Pennsylvania Parole Board on February 20, 1974, and transferred to Lewisburg for service of the West Virginia federal sentence, since a detainer based on that sentence had been filed with the Pennsylvania authorities.
Petitioner contends that he has been held in illegal custody contrary to 18 U.S.C. § 4163 "after complete service of his legal sentence on May 1, 1975, of six years," 3 since the effective commencement of the federal West Virginia sentence was January 19, 1971, when the Ohio federal sentencing judge recommended that a state institution be designated as the place of service for the Ohio federal sentence.
On the other hand, respondent contends that the West Virginia federal sentence could not have commenced prior to February 20, 1974, when he was released from state custody and arrived at the federal penitentiary to serve the remainder of his federal sentences described under 2 and 4 above.
In Sobell v. Attorney General of U.S., Dept. of Justice, 400 F.2d 986 (3d Cir. 1968), we held that a claim by a defendant that he was entitled to credit for time served from the date of his arrest to the date of his federal sentence must be determined by the sentencing court under the terms of 28 U.S.C. § 2255, using this language at 988:
In this case, credit is being claimed for time served in state institutions subsequent to the imposition of the September 1969 federal West Virginia sentence and without either any indication that the West Virginia federal sentencing judge could have known the Pennsylvania sentence would be affirmed on appeal or that the Ohio crime had been committed. As stated in Soyka v. Alldredge, 481 F.2d 303, 306 (3d Cir. 1973), where petitioner challenges the effect of events "subsequent" to his sentence on that sentence, the habeas corpus remedy in 28 U.S.C. § 2241 is an appropriate remedy. This reasoning is supported by the emphasis placed by the Supreme Court of the United States in United States v. Hayman, 342 U.S. 205, 217 at note 25,72 S.Ct. 263, 271, 96 L.Ed. 232, 240 (1952), on the purpose of 28 U.S.C. § 2255 as a remedy to correct erroneous sentences resulting from events in the trial court at or before sentencing. The major purpose was "to hold any required hearing in the sentencing court because of the inconvenience of transporting court officials and other necessary witnesses (readily available to the trial court) to the district of confinement" (220-21 of 342 U.S., 273 of 72 S.Ct., 242 of 96 L.Ed.). The Court in Hayman used this language at 218, 219 and 223, 72 S.Ct. at 272, 274, 96 L.Ed. at 241, 244:
"According to the Reviser's Note on Section 2255:
Furthermore, the United States Courts of Appeals have consistently held that a challenge to a sentence as executed by the prison and parole authorities may be made by petition for a writ of habeas corpus, whereas a challenge to the sentence as imposed must be made under 28 U.S.C. § 2255. Halprin v. United States, 295 F.2d 458, 459 (9th Cir. 1961); Freeman v. United States, 103 U.S.App.D.C. 15, 254 F.2d 352, 353-54 (1958); Costner v. United States, 180 F.2d 892 (4th Cir. 1950); 6 cf. United States ex rel. Marrero v. Warden, 483 F.2d 656, 660-61 (3d Cir. 1973), reversed on other grounds, 417 U.S. 653, 94 S.Ct. 2532, 41 L.Ed.2d 383 (1975); Soyka v. Alldredge, supra.
For the foregoing reasons, we have concluded that the district court had jurisdiction over the petition for a writ of habeas corpus.
Petitioner relies on this language at 18 U.S.C. § 3568 in support of his contention that the West Virginia sentence began on January 19, 1971:
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Smith v. U.S., CIV.A. 03-0464(RMU).
...Relief Under 28 U.S.C. § 2255 A petitioner may challenge the validity of his imposed sentence under 28 U.S.C. § 2255, Gomori v. Arnold, 533 F.2d 871, 875 (3rd Cir.1976) (stating that a challenge to an imposed federal sentence must be made under section 2255, while a challenge to a sentence ......
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Ferrante v. U.S. Bureau of Prisons
...that sentence [under § 3585]"), aff'd, 100 F.3d 946 (3d Cir.1996); Soyka v. Alldredge, 481 F.2d 303, 306 (3d Cir.1973); Gomori v. Arnold, 533 F.2d 871, 874 (3d Cir.1976); United States v. Weathersby, 958 F.2d 65, 66 (5th Cir.1992) (where defendant requests credit for time free on bond, "Sec......
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...BOP was free to disregard. See, e.g., Myers, 451 F.2d at 404; United States v. Huss, 520 F.2d 598, 602 (2d Cir.1975); Gomori v. Arnold, 533 F.2d 871, 875 (3d Cir.1976). Consequently, whether a federal sentence was concurrent or consecutive could not be determined simply by reading the judgm......
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...a federal sentence by the Bureau is properly brought under 28 U.S.C. § 2241. Bennett v. Soto, 850 F.2d 161 (3d Cir.1988); Gomori v. Arnold, 533 F.2d 871 (3d Cir.1976). Because Petitioner is challenging the terms (i.e., execution) of his sentence, his habeas petition is properly brought unde......