McGaughey v. United States, 78-0121-CV-W-1.

• Court: United States District Courts. 8th Circuit. Western District of Missouri
• Citation: 467 F. Supp. 1
• Docket Number: No. 78-0121-CV-W-1.,78-0121-CV-W-1.
• Parties: Donald E. McGAUGHEY, Petitioner, v. UNITED STATES of America, Respondent.
• Decision Date: 14 March 1978

467 F. Supp. 1

Donald E. McGAUGHEY, Petitioner,
v.
UNITED STATES of America, Respondent.

No. 78-0121-CV-W-1.

United States District Court, W. D. Missouri, W. D.

March 14, 1978.

Donald E. McGaughey, pro se.

No entrance of appearance was required by U. S. Atty. — case dismissed without requiring govt. to respond.

MEMORANDUM AND ORDER

JOHN W. OLIVER, Chief Judge.

Petitioner, presently confined at the United States Penitentiary, Leavenworth, Kansas, has filed a pro se motion to vacate sentence pursuant to 28 U.S.C. § 2255. He asserts that the revocation of his probation on 7 January 1977 was illegal.

Before turning to the merits of petitioner's claim, it is necessary to summarize his involvement with this and other federal courts. In 1969, petitioner entered guilty pleas in the District of Nebraska to five indictments alleging a total of 29 violations of 18 U.S.C. §§ 371, 495, and 2314. Judge Van Pelt, who accepted the pleas, imposed concurrent five year sentences on 25 of the 29 counts, and suspended imposition of sentence on the remaining four, one each from four of the five indictments.¹ Petitioner received concurrent five year terms of probation on these four counts, all to begin upon release from prison. Petitioner was conditionally discharged from federal custody on 1 December 1972, and his probation began on that day.

Jurisdiction over petitioner's probation was transferred to this Court on 6 January 1975 and accepted on 10 March 1975. Approximately one year later, the government filed a motion to revoke petitioner's probation in Number 75 CR 84-W-1, one of the four cases transferred from the District of Nebraska. Petitioner appeared, admitted the violations, and was ordered to serve 180 days at the Municipal Correctional Institution and participate in its alcohol therapy program. On unopposed motion of petitioner, the Court reduced the 180 day period of confinement to 98 days on 7 September. No action was taken regarding petitioner's probation in the three other cases transferred to this Court.

On 22 October 1976, petitioner was again charged with probation violations, including possession of a firearm, assault with a firearm, and visiting a liquor store in violation of special probation conditions. After advice from counsel, petitioner admitted the offenses and was committed to the United States Medical Center for Federal Prisoners for study and evaluation pursuant to 18 U.S.C. § 4205(c). On 7 January 1977, petitioner

467 F. Supp....