Hogan v. Hill

• Decision Date: 02 January 1935
• Docket Number: No. 58.,58.
• Citation: 9 F. Supp. 333
• Parties: HOGAN v. HILL.
• Court: U.S. District Court — Western District of Pennsylvania

9 F. Supp. 333

HOGAN v. HILL.

No. 58.

District Court, M. D. Pennsylvania.

January 2, 1935.

Abram M. Frumberg, Jacob F. Adelman, and I. Reines Skier, all of New York City, for petitioner.

Frank J. McDonnell, U. S. Atty., of Scranton, Pa., Herman F. Reich, Asst. U. S. Atty., of Sunbury, Pa., A. E. Gottshall, Atty., Criminal Division, Department of

Justice, of Washington, D. C., for respondent.

JOHNSON, District Judge.

This case is before the court on a writ of habeas corpus. The petitioner contends that two sentences of imprisonment imposed upon him by two different federal District Courts have been served concurrently and that he has completed service of both sentences.

On June 16, 1930, Daniel Hogan, the petitioner herein, was sentenced by the District Court for the Western District of Louisiana to be confined in the United States penitentiary at Atlanta, for a period of three years and to pay a fine of $5,000, and, in default of the payment of the fine, to be confined an additional period as provided by law. From this sentence, defendant appealed and was released on bail.

While thus released on bail, the petitioner was sentenced on November 21, 1930, by the District Court for the Eastern District of Virginia, Groner, D. J., as follows:

"* * * It is considered and ordered by the court that the said * * * Dan Hogan * * * be imprisoned in said penitentiary (the United States Penitentiary at Atlanta, Georgia) for the period of one year and nine months and fined the sum of Five Thousand Dollars ($5,000.00) without costs, said sentence, as to each of said defendants, to be effective when they surrender themselves to the United States Marshal for this District for confinement in accordance with the judgments herein imposed; but it appearing to the Court that the last named defendant, Hogan alias Kelly, alias Halpin, has been convicted and sentenced for violating the laws of the United States in another jurisdiction and that he is now under bond in that jurisdiction to answer said sentence and judgment at a future date, it is further ordered that the judgment and sentence herein imposed against said defendant shall be in addition to and independent of any other sentence or sentences heretofore imposed against said defendant by any other Court." The petitioner appealed from this sentence and was released on bail.

Both sentences were affirmed and the petitioner was committed to the Atlanta penitentiary on May 14, 1932, by virtue of the commitment issuing out of the said Louisiana District Court. On August 14, 1933, he was transferred to the United States Northeastern penitentiary at Lewisburg, Pa., to complete service of this sentence.

Upon learning that the petitioner was in custody of the warden of the United States Northeastern penitentiary, the District Judge for the Eastern District of Virginia, on September 22, 1933, ordered that the clerk of said court issue a mittimus for the said petitioner, Daniel Hogan. The court, speaking through Way, District Judge, who did not impose the original Virginia sentence, after reciting a history of petitioner's sentence, appeal, etc., made the following order: "It is accordingly ordered that the Clerk of this Court do forthwith issue mittimus for the said Dan Hogan, alias J. Kelly, alias Dan E. Halpin, and that the Marshal of this Court is hereby ordered and directed to take the said Dan Hogan, alias * * * into the custody upon the expiration of the sentence now being served in said penitentiary, at Lewisburg, Pennsylvania, and do upon taking the said Dan Hogan alias * * * into the custody, forthwith deliver him to the warden of the United States Penitentiary at Atlanta, or to such other penal institution as the Attorney General may direct, there to be confined and to serve the sentence heretofore imposed by this Court and be treated in the manner prescribed by law."

In pursuance of the above order, the said clerk, on September 22, 1933, issued the commitment which directed imprisonment for "One year and nine months, to begin at the expiration of any sentence now being served, and to be independent of and in addition to any other sentence which may be pending against him in any other court."

Upon this state of facts petitioner filed his petition for a writ of habeas corpus on November 20, 1934. This court thereupon directed a writ to issue and a hearing thereon was held on November 23, 1934. Upon request of petitioner's counsel for a further hearing, a second hearing was held on December 17, 1934, at which time a brief was filed on behalf of petitioner, and, upon request of counsel for respondent, two weeks were given to respondent in which to file a brief in reply. Petitioner filed an additional brief on December 22, 1934, and respondent filed his reply brief on December 31, 1934.

The petitioner contends that the Virginia court imposed a sentence that ran concurrently with the Louisiana sentence and that the clause, "shall be in addition to and independent of any other sentence or sentences heretofore imposed against said defendant by any other court," in the Virginia sentence is void for uncertainty and inability of application. The respondent contends that the Virginia sentence, when considered in its entirety, shows that the court imposed a consecutive sentence and that any uncertainty disappears when the sentence is considered in its entirety.

From the pleadings in this case and the contentions of the parties as set forth in their pleadings, oral arguments, and briefs, the question to be decided by this court is whether the Louisiana sentence and the Virginia sentence ran concurrently or whether they run consecutively, the service of the Virginia sentence commencing at the expiration of the service of the Louisiana sentence.

Before taking up the main issue, it becomes necessary to consider the order of the Virginia District Court above quoted, dated September 22, 1933, in pursuance of which the Virginia commitment issued. This order changed the sentence of the court dated November 21, 1930, in several respects, notably by directing the marshal to take the petitioner into custody "upon the expiration of the sentence now being served. * * *" This order was made by District Judge Way and not by District Judge Groner, who imposed the original Virginia sentence, and for that reason it is not helpful in arriving at the intent of the sentencing judge. It cannot be considered as a part of, or as altering in any respect, the original Virginia sentence, since it was rendered about three years after sentence was imposed during a later term of court and in the absence of petitioner. Ex parte Lange, 18 Wall. 163, 21 L. Ed. 872; United States v. Mayer, 235 U. S. 55, 35 S. Ct. 16, 59 L. Ed. 129; United States v. Lane (D. C.) 221 F. 299; United States v. Pile, 130 U. S. 280, 9 S. Ct. 523, 32 L. Ed. 904. Counsel for respondent disposes of this order by stating: "The order of the Court dated September 22, 1933, directing issuance of a commitment * * * is not in issue; hence not discussed." This court, in considering the nature of the Virginia sentence, must disregard the said order of September 22, 1933, which changed the original sentence.

Now as to the main question whether the two sentences are concurrent or consecutive. In United States v. Daugherty, 269 U. S. 360, 46 S. Ct. 156, 157, 70 L. Ed. 309, the Supreme Court, in construing sentences on three counts of a single indictment, laid down the following general principle: "Sentences in criminal cases should reveal with fair certainty the intent of the court and...