Levine v. Hudspeth, 2471.

• Decision Date: 22 May 1942
• Docket Number: No. 2471.,2471.
• Citation: 127 F.2d 982
• Parties: LEVINE v. HUDSPETH, Warden, United States Penitentiary, Leavenworth, Kansas.
• Court: U.S. Court of Appeals — Tenth Circuit

127 F.2d 982 (1942)

LEVINE v. HUDSPETH, Warden, United States Penitentiary, Leavenworth, Kansas.

No. 2471.

Circuit Court of Appeals, Tenth Circuit.

May 1, 1942.

Rehearing Denied May 22, 1942.

Howard K. Berry, of Oklahoma City, Okl., for appellant.

Summerfield S. Alexander, U. S. Atty., and Homer Davis, Asst. U. S. Atty., both of Topeka, Kan., for appellee.

Before PHILLIPS, BRATTON, and MURRAH, Circuit Judges.

MURRAH, Circuit Judge.

This is an appeal from an order denying a petition for a writ of habeas corpus.

On July 30, 1937, petitioner was indicted in the District Court of the United States, Eastern District of Michigan. The indictment contained five counts, charging violations of Section 194 of the Criminal Code, 18 U.S.C.A. § 317 (stealing, secreting, or embezzling mail matter). On August 9, 1939, the petitioner appeared in person, without counsel, and entered his plea of guilty to each count in the indictment. The court committed the petitioner to the custody of the Attorney General for a total period of fifteen years, without apportioning the gross sentence to the respective counts in the indictment, or providing for the sequence of their service. The petitioner commenced the service of his sentence on August 26, 1937.

On July 29, 1938, petitioner filed a writ of habeas corpus in the District Court of Kansas, seeking release on the ground that he had been denied the assistance of counsel, as guaranteed by the 6th Amendment to the Constitution. On appeal to this court from an order denying the writ, the case was reversed and remanded with directions to hear testimony tendered by the petitioner touching the allegations in the petition for the writ. See Levine v. Hudspeth, 10 Cir., 102 F.2d 691. After hearing on remand, the District Court found the petitioner had been denied the assistance of counsel at the time of his plea and sentence by the District Court for the Eastern District of Michigan. The court ordered the petitioner discharged on the writ and removed to the jurisdiction of the sentencing court, there to answer the charges against him.

After the petitioner's release and return to the Eastern District of Michigan, and on December 29, 1939, he appeared in person and by counsel; was arraigned in the same court and on the same indictment on which he had theretofore been sentenced. The petitioner waived the reading of the indictment, but refused to plead, whereupon by order of the court a plea of not guilty was entered in his behalf.

Thereafter, on February 16, 1940, at the request of petitioner, the court appointed John Begall and Benjamin C. Stanczyk as attorneys for the petitioner. Begall later withdrew from the case, but Stanczyk continued to represent the petitioner throughout the litigation. Stanczyk filed a motion to quash the indictment, which was duly heard, and denied by the trial court.

On April 24, 1940, petitioner was tried by a jury; found guilty on each of the five counts in the indictment, and on April 29, 1940, sentenced to a total of fifteen years in gross, less the time served on the sentence theretofore imposed on August 9, 1937.

Thereafter, on May 6, 1940, the petitioner again appeared in court. The sentence of April 29, 1940, was set aside, vacated by the court, and the petitioner was resentenced for a term of twelve years and three months. The sentence was imposed in gross without apportionment to the respective counts in the indictment and without provision for their sequence of service.

The trial court in Michigan denied the petitioner's application to appeal in forma pauperis on the ground that the appeal was without merit. The Circuit Court of Appeals denied a writ of mandamus designed to compel the allowance of an appeal in forma pauperis, apparently on the grounds that the writ of mandamus was not a proper remedy in the premises and that the trial court did not abuse its discretion.

On appeal here, the petitioner now contends in effect: (1) That a general sentence, or a sentence in gross, on several counts in an indictment without apportionment to the respective counts, or provision for the sequence of their service, is a nullity because it is lacking in sufficient clarity to denote the intention of the court to impose a sentence in excess of the maximum authorized for any one count in the indictment. Having served the maximum authorized by any one count in the indictment, less the statutory allowance for good behavior, he is entitled to his discharge. (2) The trial court was not authorized to order the petitioner removed to the jurisdiction of the sentencing court after discharge on a writ of habeas corpus. (3) Having been placed in jeopardy by his plea of guilty, his subsequent trial on the same indictment after discharge on habeas corpus constitutes double jeopardy. (4) Denial of a fair, impartial and speedy trial; the right to the assistance of counsel, and (5) Denial of the right to appeal from the conviction in the Michigan court.

It is a well settled and salutary rule that to support an accumulative or consecutive sentence on more than one count in an indictment, or on more than one indictment, the language used to express the intention of the court must be clear and explicit. In the absence of clear and unambiguous language denoting the intention of the court to impose an accumulative sentence on more than one count in the indictment or on more than one indictment, at the same time, or at different times, it will be presumed that the sentences thus imposed will run concurrently with each other. Subas v. Hudspeth, 10 Cir., 122 F.2d 85, and cases cited therein.

While not recognized as the better practice, it is equally well settled that a court may impose one sentence on a plea of guilty, or conviction, on two or more offenses charged in the same indictment without apportioning the sentence to the...