Hamilton v. Salter, 10433

• Decision Date: 12 May 1966
• Docket Number: No. 10433,10434.,10433
• Citation: 361 F.2d 579
• Parties: James C. HAMILTON, Appellant, v. Hugh SALTER, United States Marshal for the Eastern District of North Carolina, Appellee. Cecil HAMILTON, Appellant, v. Hugh SALTER, United States Marshal for the Eastern District of North Carolina, Appellee.
• Court: U.S. Court of Appeals — Fourth Circuit

361 F.2d 579 (1966)

James C. HAMILTON, Appellant, v. Hugh SALTER, United States Marshal for the Eastern District of North Carolina, Appellee.

Cecil HAMILTON, Appellant, v. Hugh SALTER, United States Marshal for the Eastern District of North Carolina, Appellee.

Nos. 10433, 10434.

United States Court of Appeals Fourth Circuit.

Argued April 5, 1966.

Decided May 12, 1966.

F. Kent Burns, Raleigh, N. C., for appellants.

Gerald L. Bass, Asst. U. S. Atty. (Robert H. Cowen, U. S. Atty., on brief), for appellee.

Before BRYAN and BELL, Circuit Judges, and BUTZNER, District Judge.

PER CURIAM:

By petitions for habeas corpus, James C. Hamilton and Cecil Hamilton sought release in the United States District Court for the Eastern District of North Carolina from the custody of its Marshal. They are held under Federal sentences ordered to be served concurrently with prior State sentences. They did not ask for permanent discharge, but only to be let to bail pending a final determination upon the State sentences now stayed on applications for certiorari to the United States Supreme Court. Petitioners' fear is that if they begin service of the Federal sentences before the inception of the State sentences, the result will be the partial service of the Federal and State sentences separately and consecutively which, they say, is contrary to the intent of the Federal sentences.

The petitions were denied and dismissed, and on appeal we affirm. However, to avoid any misconception of the effect of our decision, we deem it advisable to recount the prior proceedings. They are best outlined by the District Judge in his findings as follows:

"1. That on July 1, 1964, petitioners were sentenced to a term of 20-25 years in the North Carolina State Prison, at Raleigh, within the Eastern District of North Carolina.

"2. That on November 18, 1964, petitioners were brought before the United States District Court for the Western District of North Carolina upon a Writ of Habeas Corpus Ad Prosequendum at which time they pled guilty to conspiracy to violate Title 18, United States Code, Sections 500, 541, 1707 and 2115. As to both petitioners, judgment was as follows:

"`It is ADJUDGED that the defendant is hereby committed to the custody of the Attorney General or his authorized representative for imprisonment for a period of FIVE (5) YEARS. This sentence to run concurrent with State Sentence now serving.\'

"Following this sentence, petitioners were returned to the custody of the North Carolina Prison Department.

"3. On December 23, 1964, petitioners were released upon $10,000 bail pending review of their state convictions by the North Carolina Supreme Court.

"4. On January 8, 1965, petitioners were taken into federal custody upon order of January 6, 1965 of the United States District Court for the Western District of North Carolina to serve the five year federal sentence imposed by that Court. Thereafter, upon affirmance of the state sentence by the North Carolina Supreme Court, petitioners were returned to the North Carolina State Prison. On May 27, 1965, an order was issued by Associate Justice Clifton L. Moore staying the state sentence of imprisonment and setting appeal bond for petitioners pending application for writ of Certiorari to the United States Supreme Court, which application is still pending.

"5. On December 7, 1965, petitioners remained in confinement at Central Prison in spite of the aforesaid order and filed on that date a petition for habeas corpus directed against the Warden of the North Carolina Prison.

"6. On December 13, 1965, petitioners were released on bond posted pursuant to said order of the North Carolina Supreme Court, and in compliance to the federal detainers theretofore filed they were delivered to the custody of the United States Marshal for the Eastern District of North Carolina, respondent in the instant action and are presently confined in the Wake County Jail within the Eastern District of North Carolina." (Accents added.)

The apprehension of the petitioners is not without basis. It is quite possible, as already noted, that...