McDonald v. Moinet, 9538.
| Decision Date | 10 January 1944 |
| Docket Number | No. 9538.,9538. |
| Citation | 139 F.2d 939 |
| Parties | McDONALD v. MOINET, Judge. |
| Court | U.S. Court of Appeals — Sixth Circuit |
Walter McDonald, in pro. per.
Vincent Fordell, Asst. U. S. Atty., of Detroit, Mich., for respondent.
Before ALLEN, HAMILTON, and MARTIN, Circuit Judges.
As prayed in the motion of petitioner, Walter McDonald, his appeal has been considered upon a photostatic copy of the record in the District Court and the typewritten briefs filed by him within his requested extended time limit.
The petitioner was convicted on January 25, 1939, upon all six counts of an indictment charging bank robbery, in violation of 12 U.S.C.A., § 588b(a) and (b). On the day following the jury verdict, the District Judge sentenced the petitioner to 35 years' imprisonment in a Federal penitentiary. The petitioner has continuously served time since the sentence was pronounced.
On November 19, 1942, petitioner subscribed and swore to a motion for vacation of the sentences, alleging them to be erroneous and void. The Judge of the United States District Court for Eastern Michigan, in which district petitioner had been indicted, tried, convicted and sentenced, entered an order on June 12, 1943, denying this motion, described as filed "on January 13, 1943, to vacate part of the sentence." On the second day following this denial of remedy, the United States Attorney filed a petition for a writ of habeas corpus ad prosequendum in order to bring Walter McDonald into the Federal District Court for Eastern Michigan for the purpose of vacating the sentence and resentencing the convict. The District Attorney pursued this course to conform to decisions of Circuit Courts of Appeal holding that the offense of bank robbery by use of deadly weapons, as defined in 12 U.S. C.A., § 588b, Subsection (b), is the same offense as that described in Section 588b, Subsection (a), aggravated by the use of a deadly weapon.
The petition of the Government Attorney conceded that Walter McDonald could properly be sentenced on only one of the counts of the indictment and that the maximum sentence provided for under Title 12, Section 588b, Subsection (b), is twenty-five years.
The District Judge ordered the writ of habeas corpus ad prosequendum to be issued, directed to the Warden of the United States Penitentiary at Leavenworth, Kansas. Some two weeks later, on June 30, 1943, the United States Attorney filed an identical petition for the same writ, except that it was prayed that the writ be directed to the Warden of the United States Penitentiary at Alcatraz, California. This later writ was also ordered to be issued.
In response, the convict Walter McDonald filed a pleading embracing a brief and argument, with citation of authorities, in which he prayed a dismissal without prejudice of the Government's petition to vacate the sentence, pending review by this court of the order of the District Court entered June 12, 1943, denying McDonald's motion to vacate the invalid sentence.
The certified record of the proceedings in the lower court contains an unsigned order allowing an appeal from the order entered June 12, 1943, denying vacation of the sentence, and also an unsigned citation. The record reveals a petition for allowance of appeal, notice and grounds of appeal, assignments of error and a praecipe for a transcript of the record, all signed by Walter McDonald as "movant appellant, pro se."
On October 9, 1943, this court entered an order that the motion of the petitioner Walter McDonald tendered for filing on July 28, 1943, together with exhibits, be filed by the clerk of this court and a copy thereof served upon Honorable E. J. Moinet, Judge of the United States District Court for the Eastern District of Michigan. It was further ordered that the clerk of the District Court file with the clerk of this court a transcript of the record in the court below as called for by the praecipe.
The record shows that on October 21, 1943, the United States District Judge entered an order as follows: "The defendant Walter McDonald having been brought before this Honorable Court, pursuant to a writ of habeas corpus issued on June 30, 1943, on petition of the United States Attorney, and the Court being of the opinion that the sentence imposed on said defendant Walter McDonald in this cause is invalid; it is hereby ordered that the sentence imposed on the defendant Walter McDonald, in this cause on January 26, 1939, be set aside."
On the same date, the District Judge entered the following order re-sentencing the defendant:
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