Metoyer v. Simpson

• Decision Date: 15 January 1969
• Docket Number: Civ. A. No. 2795-N.
• Parties: Gregory METOYER, Petitioner, v. Curtis M. SIMPSON, Warden, Kilby Prison, Montgomery, Alabama, et al., Respondents.
• Court: U.S. District Court — Middle District of Alabama

294 F. Supp. 1334

Gregory METOYER, Petitioner, v. Curtis M. SIMPSON, Warden, Kilby Prison, Montgomery, Alabama, et al., Respondents.

Civ. A. No. 2795-N.

United States District Court M. D. Alabama, N. D.

January 15, 1969.

MacDonald Gallion, Atty. Gen., State of Alabama, and David W. Clark, Asst. Atty. Gen., State of Alabama, Montgomery, Ala., for respondents.

Gregory Metoyer, in pro. per.

ORDER

JOHNSON, Chief Judge.

By order of this Court filed herein on November 18, 1968, the petitioner, Gregory Metoyer, was granted leave to file and proceed in forma pauperis on his application for writ of habeas corpus. At the same time this Court ordered and directed that Curtis M. Simpson, Warden of Kilby Prison, Montgomery, Alabama, appear and show cause why the writ as prayed for by the petitioner should not issue. The Attorney General for the State of Alabama on December 18, 1968, filed a return and answer on behalf of the respondent Warden. Upon receipt of the return and answer this cause was set for a pretrial hearing, pursuant to Rule 16 of the Federal Rules of Civil Procedure, which was held January 10, 1969.

By agreement of the parties this cause is now submitted upon the petition for writ of habeas corpus, the return and answer as filed upon behalf of the respondent Warden and an oral stipulation that the essential facts in this cause are as represented in the petition for writ of habeas corpus. It appears that petitioner Metoyer is presently incarcerated by the State of Alabama at Kilby Prison, Montgomery, Alabama, by virtue of a judgment of the Circuit Court of Jefferson County, Alabama, rendered on June 12, 1967. Respondents do not dispute that petitioner has exhausted the remedies available to him in the Courts of the State of Alabama, as he is required to do under Section 2254, Title 28, United States Code.

It appears that petitioner Metoyer was convicted on November 30, 1961, for the offense of robbery, upon which conviction he was sentenced to a term of 20 years. Robbery is punishable in Alabama by sentences from 10 years' imprisonment to death. Title 14, Sec. 415, Code of Alabama (Recomp.1958). On August 11, 1966, some 4 years and 8 months later, the same Circuit Court granted a writ of error coram nobis, set aside the judgment, the sentence and the plea of guilty, and restored the case to the trial docket.

Unable to make a bond set at $20,000, petitioner was maintained in custody until June 12, 1967, at which time he withdrew his plea of not guilty and entered a plea of guilty to the lesser offense of larceny. It is agreed that the facts upon which this conviction is based are the same as those upon which the previous conviction for robbery was based. Petitioner was sentenced to a term of 8 years' imprisonment upon this conviction. Larceny is punishable in Alabama by sentences from 1 to 10 years. Title 14, Sec. 331, Code of Alabama (Recomp. 1958), as amended.

Petitioner contends that he is entitled to credit for the time served on the robbery conviction against the sentence imposed upon him on the present larceny conviction. It is not disputed that if Metoyer received this credit, he would be due to be released. Petitioner relies upon Hill v. Holman, 255 F.Supp. 924 (M.D.Ala.1966) in which this Court stated:

"The constitutional requirements of due process will not permit the State of Alabama to require petitioner Hill, or any other prisoner for that matter, to be penalized by service in the state penitentiary because of an error made by the state circuit court. Petitioner Hill was entitled to have the illegal sentence vacated. This, of course, was done by

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