Mason v. Anderson, Civ-72-769.

• Decision Date: 29 March 1973
• Docket Number: No. Civ-72-769.,Civ-72-769.
• Citation: 357 F. Supp. 672
• Parties: Howard E. MASON, Petitioner, v. Park J. ANDERSON, Warden, Respondent.
• Court: U.S. District Court — Western District of Oklahoma

357 F. Supp. 672

Howard E. MASON, Petitioner, v. Park J. ANDERSON, Warden, Respondent.

No. Civ-72-769.

United States District Court, W. D. Oklahoma.

March 29, 1973.

EUBANKS, District Judge.

SECOND REPORT OF THE UNITED STATES MAGISTRATE

The undersigned having examined the files and records in this proceeding submits the following report:

I. NATURE OF PROCEEDING

This is a petition for a writ of habeas corpus by a state prisoner in which he challenges the validity of the judgments and sentences of the District Court of Oklahoma County, in Cases Numbered 29268 and 30076, wherein on February 10, 1965, he received two concurrent five year terms of imprisonment which have already been served and the petitioner discharged on December 15, 1967.

II. ALLEGED GROUNDS FOR VOIDING THE JUDGMENTS AND SENTENCES IN SAID CASES NUMBERED 29268 and 30076

1. Petitioner was not advised of his right to appeal the guilty pleas and when he filed an application for post conviction relief he was denied a Case-made at public expense.

2. Petitioner was without counsel at the time he entered his pleas of guilty.

3. The district court failed to advise petitioner of his rights and through his pleas of guilty, he waived such rights, before accepting his pleas.

4. The district court failed to first ascertain and place on the record that defendant's pleas of guilty were voluntary and made with full understanding of the nature of the facts in relation to the charges before accepting the pleas of guilty.

5. The district court failed to determine if there was a factual basis for the defendant's pleas of guilty before accepting his pleas.

6. The petitioner's pleas of guilty were involuntary because he was coerced by threats and the state failed to keep the plea bargain made with him.

III. FINDINGS OF FACT

On February 10, 1965, petitioner entered pleas of guilty to the charge of forgery in second degree in Case No. 29268 and to the charge of illegal possession of narcotics in Case No. 30076. The court sentenced the petitioner to terms of five years imprisonment in each case to run concurrently. The petitioner completed service of these sentences and was discharged from custody December 15, 1967.

2. The petitioner is confined in the Oklahoma State Penitentiary at McAlester, Oklahoma, by virtue of judgments and sentences of the District Court of Oklahoma County in Cases Numbered CRF-69-2754 and CRF-69-2832. On January 26, 1970, the petitioner plead guilty in Case No. CRF-69-2754 to the charge of burglary in the second degree after former conviction of a felony and in Case No. CRF-69-2832 to the charge of obtaining a thing of value by bogus check after former conviction of a felony. In each of these cases, the court imposed a sentence of 15 years imprisonment to run concurrently. Petitioner does not in this proceeding challenge the judgments and sentences in these two cases (see petitioner's "Traverse").

3. No direct appeal of the judgments and sentences in Cases Numbered 29268 and 30076 was taken.

4. An application for post conviction relief in Cases Numbered 29268 and 30076 was filed in the sentencing court. The Attorney General advises that the allegations contained therein were similar to ones now urged in this court. The District Court of Oklahoma County denied the relief sought without an evidentiary hearing on March 24, 1972.

5. An appeal by the petitioner to the Court of Criminal Appeals from the Order denying post conviction relief was unsuccessful in Case No. A-17,413.

IV. CONCLUSIONS OF LAW

The threshold question in this proceeding is whether this court has jurisdiction to entertain this petition. Admittedly, the petitioner on December 15, 1967, completed the sentences imposed pursuant to the convictions which he now denounces. His present detention is under the sentences received by him in 1970. In Ward v. State of Oklahoma, 376 F.2d 847 (CA 10 1967) our court of appeals held:

"Habeas corpus is available only to a prisoner who is in custody pursuant to the court judgment which is challenged by the proceeding."

This case would appear to foreclose to the petitioner habeas relief in this proceeding. Its continued vitality, however, has not been reviewed by the court since the decision of the Supreme Court in Carafas v. Le Vallee, 391 U.S. 234, 88 S.Ct. 1556, 20 L.Ed.2d 554 rendered May 20, 1968. Therein the petitioner sought habeas corpus before his sentence expired but his application was not finally adjudicated until after his sentence expired and he was unconditionally released from custody. On those facts the court held that the case was not moot and that jurisdiction over the timely brought petition had not been terminated by petitioner's release:

". . . once the federal jurisdiction has attached in the District Court, it is not defeated by the release of the petitioner prior to completion of proceedings on such application." 391 U.S. at 238, 88 S.Ct. at 1560.

The court emphasized that the petitioner was in custody when he filed his application and affirmed:

"The federal habeas corpus statute requires that the applicant must be `in custody' when the application for habeas corpus is filed. This is required not only by the repeated references in the statute, but also by the history of the great writ." 391 U.S. at 238, 88 S.Ct. at 1560.

In short, the court merely ruled that mootness, resulting from the delay in the appellate process, would not prevent habeas corpus relief. It did not hold that a habeas corpus petition could be instituted when the petitioner was not in custody. United States v. Meyer, 417 F.2d 1020, 1022 n. 2 (CA 8 1968). It has been observed by the editors in Developments in the Law—Federal Habeas Corpus, 83 Harv.L.Rev. 1038, 1077 (1970):

"in deciding the case as it did, the court gave several indications that it was consciously eschewing its opportunity to extend the custody concept to include petitioner's disabilities. First, by refusing to consider the collateral restraints themselves a custody, Carafas results in an apparent, arbitrary distinction. The negative pregnant of the not-moot holding is that habeas relief is not available to those who apply for the writ after their release, even though they may be subject to the same disabilities which the Court saw as sufficient to warrant a remedy in Carafas . . . Second, the court twisted the statutory language to reach even this limited result. The statute specifies that `the writ . . . shall not extend to a prisoner unless . . . he is in custody. . . .' Although the writ had not issued prior to Carafas' release, the court held jurisdiction had attached, since the statute requires only `that the applicant must be "in custody" when the application for habeas corpus is filed.' . . ."

Nevertheless, the trend in the courts has been to treat Carafas as relaxing the "in custody" requirement imposed on applicants for habeas corpus. In Capetta v. Wainwright, 406 F.2d 1238 (CA 5 1969) the court sustained habeas corpus jurisdiction where the petitioner had already served the sentence he was attacking but was "in custody" for another offense on a separate sentence which was not being attacked and claimed that if he should prevail on the merits of his petition he would under Florida law be entitled to credit in some degree on the sentence which he was then serving. In Lyons v. Brierley, 435 F.2d 1214 (CA 3 1970) the court found jurisdiction to consider a habeas corpus attack on the validity of a fully served sentence petitioner was required to complete which thereby postponed the commencement of a later sentence on another unchallenged conviction for which the petitioner was still incarcerated. cf. United States, ex rel. Myers v. Smith, 445 F.2d 75 (CA 2 1971) (court had no jurisdiction where petitioner serving an unrelated sentence attacks an earlier conviction which had been fully served and the petitioner released and the petitioner did not allege that the prior conviction had affected his present detention) and United States ex rel. Collins v. Cady, 322 F.Supp. 1168 (E.D.Wis.1971) (court had no jurisdiction where petitioners convicted of misdemeanor had already served their sentences and were in custody under convictions which could in no way be linked or attributable to the conviction under attack).

In the light of these cases it would appear that this court has jurisdiction if the convictions now under attack bear some positive relation to petitioner's present confinement so that if they are invalidated the petitioner's present confinement would be shortened or terminated. First, such a relationship would exist if we were to find, as petitioner insists we should, that he would be entitled to apply the time served under any such void conviction to his present sentences. This must be determined in accordance with the Oklahoma law. Handley v. Page, 279 F.Supp. 878 (W.D. Okla.1968), affirmed 398 F.2d 351 (CA 10 1968), cert. denied 394 U.S. 935, 89 S.Ct. 1212, 22 L.Ed.2d 466; Johnson v. Beto, 383 F.2d 197 (CA 5 1967); Burns v. Crouse, 339 F.2d 883 (CA 10 1964), cert. denied 380 U.S. 925, 85 S.Ct. 930, 13 L.Ed.2d 811. See also Newell v. Page, 280 F.Supp. 203 (W.D.Okl.1968); Howard v. Craven, 306 F.Supp. 730 (C.D. Cal.1969); Gross v. Sarver, 307 F.Supp. 1105 (E.D.Ark.1970). The rule in Oklahoma is set forth in Syllabus No. 1 of Martin v. Page, 484 P.2d 1319, 1320 (Okl.Cr.1971):

"Prison time served under a voided conviction will not be credited upon a sentence incurred for an entirely different offense subsequent to release from prison on the voided sentence."

Clearly under this rule, the petitioner would not be entitled to credit upon his present sentences if the challenged convictions were voided since the current sentences were incurred after the petitioner had completed the questioned sentences and had been released from prison. Petitioner's reliance upon Lamb v. Page, 482 P.2d 615 (Okl.Cr.1971) is misplaced for the distinction recognized in the Martin...