Hart v. United States, 15849.

• Citation: 259 F.2d 646
• Decision Date: 22 September 1958
• Docket Number: No. 15849.,15849.
• Parties: Lloyd B. HART, Appellant, v. UNITED STATES of America, Appellee.
• Court: U.S. Court of Appeals — Eighth Circuit

259 F.2d 646 (1958)

Lloyd B. HART, Appellant, v. UNITED STATES of America, Appellee.

No. 15849.

United States Court of Appeals Eighth Circuit.

September 22, 1958.

Edwin S. Taylor, St. Louis, Mo. (appointed by the Court) for appellant.

George E. MacKinnon, U.S. Atty., St. Paul, Minn., for appellee.

Before GARDNER, Chief Judge, JOHNSEN and VAN OOSTERHOUT, Circuit Judges.

JOHNSEN, Circuit Judge.

The District Court denied appellant's motion, made under 28 U.S.C.A. § 2255, to have some language in a sentencing order deleted so as to prevent it from being accorded any effect, or alternatively to have it declared that such language was without any significance. The language challenged had relation to the time when service of the sentence should commence to run.

The judge by whom the sentence was imposed had died, so that the motion was heard by another judge of the same court. In holding that appellant was not entitled to the relief sought, the court took occasion to make clarification, by more specific expression, of the intent reflected by the record of the sentencing proceedings. And as thus clarified, the court further engaged in making repronouncement of the sentence.

This was done with appellant present in court, represented by counsel, brought before the bench, having full explanation made to him, and being afforded the opportunity for statement, so that no question is involved as to the property of the court's collateral action, if appellant's motion was otherwise entitled to be denied.

The sentence was one for a term of 4½ years, imposed on appellant's plea of guilty to the offense of having possession of stolen mail, in violation of 18 U.S.C.A. § 1708, with a provision in the order that "said sentence (is) to be served consecutively and not concurrently with any other sentence to be served by the defendant". It is the quoted language against which appellant's motion was directed, on the claim that it either was invalid in the situation or was incapable of having any effect.

At the time of the commission of the offense involved, appellant had been granted a conditional release from federal prison by the Board of Parole, after having served approximately 5 years of a 10-year sentence (2 consecutive 5-year terms) imposed upon him for convictions of other crimes. Following his arrest for the present offense, a member of the Board issued a parole-violation warrant against him, directing that he be taken into custody by the marshal and be returned to the penitentiary from which he had been released. The marshal made service of the warrant upon appellant, while he was being held in the county jail at Minneapolis, Minnesota, awaiting presentence investigation and sentence pronouncement on his plea of guilty to the present offense. Thus, from that time on, the marshal's right to custody of appellant had a dual basis.

The court imposed sentence on appellant for the present offense on October 27, 1954, and committed him generally to the custody of the Attorney General, as required by 18 U.S.C.A. § 4082, subject, of course, to such effect as the provision for consecutiveness had in the order. On October 29, 1954, the Attorney General's representative, under his warrant custody, directed the marshal to return appellant, as a parole violator, to the penitentiary (Leavenworth) from which he had been released, "for service of the balance of his sentence". Other than this, there was no expression or designation made by the Attorney General in respect to the serving of the sentence for the present offense.

Upon the marshal's surrender of appellant to the warden at Leavenworth, the penitentiary records were made to show his receipt into custody there under the parole-violation warrant. And when the Board of Parole made formal revocation of its order of conditional release on February 15, 1955, there was set up on the penitentiary records a balance of 1835 days as remaining on appellant's first sentence, with notation that service thereof had commenced to run on October 7, 1954, when the parole-violation warrant was served upon him. This was followed by another notation that appellant was to serve a sentence of 4 years and 6 months thereafter, "computed as beginning on Expiration Date of sentence No. 1 above".

The sentence for the present offense, as indicated, had originally provided that the 4½-year term was "to be served consecutively and not concurrently with any other sentence to be served by the defendant". Appellant's counsel had at the time of sentence called the court's attention to the unserved balance of the previous sentence term and sought to urge it as a consideration for leniency in respect to the additional sentence. In the clarification and repronouncement order made by the court in this proceeding, it was provided that "said sentence is to be served consecutively to, and not concurrently with, the sentence you are now serving at the United States Penitentiary at Leavenworth, Kansas, which was imposed by the United States District Court for the Southern District of Iowa, Central Division, on September 19, 1947, in a criminal proceeding in that Court entitled United States v. Lloyd Beverly Hart, No. 5076'."

Appellant contends that the provision of the sentencing order as initially pronounced, making service of such sentence consecutive to "any other sentence to be served by him", was, both generally and in particular as related to the sentence on which he had been conditionally released, of such uncertainty as to render it invalid, or, if not invalid, at least incapable at the time of his return to the Leavenworth penitentiary of being accorded any effect.

The substance of the argument made is that the conditional-release sentence was devoid of all operativeness at the time the court imposed sentence for the present offense; that vitality would be restored to the inoperative sentence only in the event that the Board of Parole should, on hearing, as prescribed by 18 U.S.C.A. § 4207, make revocation of the conditional release; and that whether the Board might or might not so do was a matter of such indefiniteness and contingency as to actuality and time that it could not or ought not to be permitted to be made the basis for consecutiveness in the serving of his second sentence, which otherwise would have immediate effect.

The conclusion urged upon us is that the only sentence upon which the warden of the Leavenworth penitentiary could legally at the time receive and hold appellant in custody at the institution was the present sentence; that this therefore automatically commenced the running of such sentence (see 18 U.S.C.A. § 3568); and that the sentencing order should accordingly be corrected to effect this result on its face, by declaring the provision for consecutiveness to be either invalid or of no significance.

It is true that 18 U.S.C.A. § 4207 entitles a prisoner, who has been paroled or granted a conditional release, to "an opportunity to appear before the Board, a member thereof, or an examiner designated by the Board", before the order of parole or conditional release can be formally revoked, so as to require him to serve the remaining part of his sentence. The two immediately preceding sections of the statute, §§ 4205 and 4206, however, allow a sentence to retain such operativeness and effect against an order of parole or conditional release as to afford an immediate basis for retaking a prisoner on a parole-violation warrant and returning him to the custody of the Attorney General, in institutional confinement, until the Board shall have opportunity to act on whether his parole ought to be revoked or further continued.

Such right to retake and return a prisoner to the custody of the Attorney General and to hold him thereafter in institutional confinement, until the Board has opportunity to act, rests under the statute on the underlying unserved sentence, in that the incidents are given the significance and effect of requiring the prisoner to engage in further service of such sentence for this interim.

This is clear, we think, from the language of § 4205,...