McDonald v. Johnston, 10882.
| Decision Date | 21 May 1945 |
| Docket Number | No. 10882.,10882. |
| Citation | 149 F.2d 768 |
| Parties | McDONALD v. JOHNSTON, Warden. |
| Court | U.S. Court of Appeals — Ninth Circuit |
Walter McDonald, in pro. per.
Frank J. Hennessy, U. S. Atty., and R. B. McMillan and Joseph Karesh, Asst. U. S. Attys., all of San Francisco, Cal., for appellee.
Before DENMAN, HEALY, and BONE, Circuit Judges.
Appellant, an inmate of the United States Penitentiary at Alcatraz, seeks his discharge from custody by an application for a writ of habeas corpus. Upon the filing of the application the court below issued an order to show cause. Appellee, Warden, filed a return to the order to show cause. Appellant then filed a traverse to the return. Thereafter, upon due consideration of the pleadings and issues involved, the court below discharged the order to show cause and dismissed the petition. The appeal is taken from that judgment.
The facts of this case are clearly set forth in McDonald v. Moinet, 6 Cir., 1944, 139 F.2d 939, certiorari denied, 322 U.S. 730, 64 S.Ct. 942, rehearing denied, 322 U.S. 769, 64 S.Ct. 1142, wherein the court considered the same arguments that the petitioner here advances and rendered a decision adverse to his contentions. The Moinet case involved an appeal from an adverse judgment to McDonald's petition for an order vacating the sentence of 35 years imprisonment entered following petitioner's conviction upon all six counts of an indictment charging bank robbery and violation of 12 U.S.C.A. § 588b.
During the pendency of the appeal in the Moinet case, and upon the petition of the United States Attorney, the District Court entered an order vacating and setting aside the original sentence for 35 years and on the same day re-sentenced the appellant to 25 years on count two of the indictment. This second sentence, although entered some four and one-half years after the trial, was thought necessary because the original sentence had been based upon Sections 588b(a) and 588b(b), 12 U.S.C.A., as if they defined two separate offenses, whereas several Circuit Courts of Appeal had recently held that these sections were intended to define only one offense, either aggravated or not aggravated. See Dimenza v. Johnston, 9 Cir., 130 F.2d 465; McDonald v. Moinet, supra, 139 F.2d 939 at page 941 for cases. In the Moinet case the court had the transcript of the District Court's re-sentencing order brought before it.
The substantial question raised by appellant in both his appeal in the Moinet case and in this case is whether the District Court has the power to set aside the original sentence and re-sentence in the manner it did here. Appellant now claims, as he did in the previous appeal in the Sixth Circuit, that his original sentence for 35 years imprisonment should be prorated between the six counts so that the original sentence be construed as imposing a five year and 10 months sentence on each of the six counts. Upon this premise appellant argues that he should now be released on his writ of habeas corpus since the District Court had no power to re-sentence him and since at the time of his application to the Court below in May, 1944 for the writ of habeas corpus he had served the five year and 10 month sentence on count two (discounting good time). The contention is without merit. See Vautrot v. United States, 8 Cir., 144 F.2d 740.
Appellant further contends that the second sentence is otherwise invalid because it provides that it shall commence to run from October 21, 1943, instead of January 26, 1939, the date of the first sentence. He contends that the district court's first sentence was void only as to its excess over 25 years and that the district court had no power to do other than deduct 10 years from its first sentence. He cites the Vautrot case, supra, in the Circuit Court of Appeals for the Eighth Circuit, a case identical with the facts of the instant case. There the district court, instead of setting aside the 35-year sentence, merely modified it by reducing it to 25 years.
Appellant also cites Bryant v. United States, 8 Cir., 214 F. 51, 52, where the sentence was corrected from 2 years to 1...
To continue reading
Request your trial
-
Stevenson v. Johnston, 26903.
...Whitfield v. State of Ohio, 297 U.S. 431, 56 S.Ct. 532, 80 L.Ed. 778; Gantz v. United States, 8 Cir., 127 F.2d 498, 501; McDonald v. Johnston, 9 Cir., 149 F.2d 768; McDonald v. Moinet, 6 Cir., 136 F.2d 939; United States v. Lynch, 7 Cir., 159 F.2d 198, ...
-
McDonald v. Swope
...McDonald v. Hudspeth, 10 Cir., 129 F.2d 196, and McDonald v. Johnston, 9 Cir., 157 F.2d 275. It is agreed that the case of McDonald v. Johnston, 9 Cir., 149 F.2d 768, was upon an entirely different issue and that McDonald v. United States, 6 Cir., 166 F.2d 323, is not in the nature of coram......
-
Brown v. Beto, 23821.
...9 Cir. 1939, 103 F.2d 19; Demaurez v. Squier, 9 Cir. 1941, 121 F.2d 960; Graham v. Squier, 9 Cir. 1944, 145 F.2d 348; McDonald v. Johnston, 9 Cir. 1945, 149 F.2d 768; Oddo v. Swope, 9 Cir. 1951, 193 F.2d 492; Woollomes v. Heinze, 9 Cir. 1952, 198 F.2d 577. See also Wells v. People of the St......
-
Wright v. Johnston
...appealed and decided on June 18, 1945. 149 F.2d 648. Within a month prior thereto, that circuit court decided the case of McDonald v. Johnston, 9 Cir., 149 F.2d 768, in which it held at page 769, concerning its power to adjudicate non-validity of a sentence where another is being served: "T......