Miller v. Sanford, 2015 H. C.

• Decision Date: 31 January 1945
• Docket Number: No. 2015 H. C.,2015 H. C.
• Citation: 59 F. Supp. 812
• Parties: MILLER v. SANFORD, Warden.
• Court: U.S. District Court — Northern District of Georgia

59 F. Supp. 812

MILLER v. SANFORD, Warden.

No. 2015 H. C.

District Court, N. D. Georgia, Atlanta Division.

January 31, 1945.

William Roy Miller, in pro. per., for petitioner.

M. Neil Andrews, U. S. Atty., and Harvey H. Tysinger, Asst. U. S. Atty., all of Atlanta, Ga., for respondent.

RUSSELL, District Judge.

By his petition for the writ of habeas corpus, William Roy Miller asserts that he is illegally detained by the warden of the Atlanta Penitentiary. He states further the commitments under which he is held and attacks their legality. The writ was issued and a hearing had and continued to allow the presentation of additional evidence.

The petitioner is held in custody by virtue of two sentences and commitments issued thereon; one from the District Court of the United States for the Northern District of Texas, at Dallas, and the other, provided to begin at the expiration of the Dallas sentence, imposed by the District Court of the United States for the Southern District of Texas, at Houston.

The Dallas commitment is pursuant to a sentence of the court of 7½ years to date from January 14, 1939. This sentence was actually entered on May 16, 1944, in conformity with the mandate and direction of the United States Supreme Court, 321 U.S. 752, 64 S.Ct. 634, which upon consideration of an appeal by the present petitioner, reversed the judgment of the Circuit Court of Appeals for the Fifth Circuit and remanded the cause to the District Court at Dallas with directions that the former orders and sentences of the court in three certain criminal cases there pending be clarified, and the legal sentences imposed thereby established. After a hearing, Judge Wilson determined that the legal sentences thereby imposed were 7½ years. It is unnecessary to state the circumstances giving rise to the appeals and the direction of the United States Supreme Court. One of the appeals is found in Miller v. United States, 5 Cir., 128 F.2d 519, and the other appeal from the sentence imposed subsequent to the decision in that case is Miller v. United States, 5 Cir., 136 F.2d 287, which affirmed the correction of the record by the trial court so as to fix a sentence of 8½ years total to be served on all of the counts of the three cases. On appeal from this affirmance, the Supreme Court ordered (321 U.S. 752, 64 S.Ct. 634): "on consideration of the stipulation between counsel for the petitioner and the Solicitor General, the judgment of the Circuit Court of Appeals is reversed and the cause is remanded to the District Court of the United States for the Northern District of Texas with direction that petitioner, after reasonable notice, be accorded a hearing on the issues involved before a judge other than the sentencing judge, and that at such hearing petitioner be allowed to be present and represented by counsel, with opportunity to adduce testimony and cross-examine witnesses." Thereafter, and in full accord with the provisions of this order, a hearing was had before his Honor, Judge James A. Wilson, who rendered an opinion and entered sentence totalling 7½ years.¹ No appeal was taken from this order and sentence, and it constitutes a final and binding determination of the sentence to be served by the petitioner under the Dallas cases. The above sentence of 7½ years, dating from January 14, 1939, as therein provided, and with good time allowances, has already been served. It therefore becomes necessary to consider the legality of the sentence imposed by the District Court at Houston which was provided to become effective at the expiration of the Dallas sentences.

On March 14, 1939, petitioner was arraigned and placed on trial in the United States District Court at Houston, Texas, upon an indictment in six counts charging violation of the provisions of section 347, 18 U.S.C.A. He was represented by counsel appointed by the court, entered a plea of not guilty, and he was by the jury found guilty on all of the counts of the indictment. He was thereupon sentenced by the court to imprisonment for the term of five years on each count; the five years imposed on each of the counts one, two and three, to be concurrent, and the five years imposed on each of the counts four, five and six to be concurrent of each other but cumulative of the sentences on counts one, two and three, making a total term of imprisonment of ten years to be served, with the proviso that the ten years be cumulative of the sentence theretofore imposed upon the defendant by the District Court at Dallas.

In the present proceeding, the petitioner attacks the validity of this sentence upon the ground of specified alleged errors committed during the course of the trial, and the action of the trial judge in ordering the removal of the petitioner to another district within the five days allowed for the taking of an appeal, after petitioner had given oral notice of his intention to appeal at the time of sentence; and further, on the failure of the trial judge to act upon petitioner's telegraphic request that he be returned to the jurisdiction of the sentencing court, and the "misunderstanding" on the part of the trial judge which resulted in the petitioner being deprived of the transcript of the testimony for appeal purposes.

The questions arising from the contentions of the petitioner and the evidence introduced in this habeas corpus proceeding are: Was the petitioner prevented by the action of the trial court from effecting his appeal, and if so, the power and duty of a habeas corpus court to afford relief from such erroneous action.

The facts with reference to this question are in the main without dispute and are found as follows: Immediately after the imposition of sentence, the petitioner orally advised the court of his intention to appeal, and the trial judge entered upon his calendar sheet "notice of appeal J. V. A." The defendant was taken from the court room and counsel who had been appointed to represent him on the trial asked the court if he was under any obligation to represent the defendant upon the appeal and was informed by the court that he was not under any such duty, and was excused by the court from any further representation. He thereupon advised the defendant that he would not represent him should he undertake to appeal the case. Federal prisoners awaiting trial at Houston are confined in a jail at Conroe, Texas, some fifty miles from Houston, and within an hour or two on March 14th, the defendant was removed from the detention room at Houston to the jail at Conroe. Miller had been brought to Houston by writ of habeas corpus ad prosequendum from Dallas, and on March 16th, on application of the United States Attorney, the trial judge entered an order directing the marshal to return Miller to the marshal at Dallas, and on March 17th, this order was executed and in the afternoon of that day Miller was turned over to the federal authorities at Dallas and confined with other federal prisoners in the county jail there. On March 17th, the appointed trial counsel received from Miller a telegram sent from Dallas, Texas, at 4:35 P. M. as follows: "Wire me if you will take care of appeal, forward papers care of Dallas County Jail," and also on the same day he was advised by that counsel by wire "would prefer for you to handle appeal yourself letter follows" signed "John Schuhmacher." On March 18th, Mr. Schuhmacher wrote the defendant, Miller, care of Dallas County Jail, Dallas, Texas, as follows: "This is to acknowledge receipt of your telegram and to advise that I received your letter of March 15th and your letter of March 16th in this morning's mail and immediately made an appointment with Mr. Red for 1 o'clock. In the course of the conversation with him, I learned that you and Mr. Cole had been transferred back to Dallas, having been sent from that district to this district under instructions to return. I filed the motion for an instructed verdict and also the pauper's oath, and as soon as the judgment is prepared in its final form I will send you a copy of it together with copies of other papers requested by you. I am confident that you are fully capable of taking active charge of your appeal, and if I can be of any help I shall be willing to give some help in submitting rough drafts for your preliminary forms. Thanking you, I beg to remain, Yours very truly, John Schuhmacher." On March 18th, Miller sent a wire to the trial judge, Hon. James V. Allred, reading as follows: "Will you appoint an attorney to prepare and file an appeal in the matter of the United States vs. William Roy Miller and Robert Cole stop if not will you give us thirty days to file an appeal ourselves and issue an order that we be brought back into your district until the appeal is perfected please wire William Roy Miller, Dallas County Jail." The testimony of Judge Allred is that his records do not indicate the exact time of the day the telegram was received, but he assumes it was received on the date it was sent. On March 21st, in an envelope postmarked Dallas, Texas, March 20, 1939, and properly addressed, the Clerk of the United States District Court for the Southern District of Texas, at Houston, received from William Roy Miller certain papers, to-wit: "Motion for Appeal, Assignments of Error and Praecipe," all signed "William Roy Miller and Robert W. Cole per se," each dated March 20th. (Robert W. Cole was a codefendant with Miller in the case.) The Clerk refused to file these papers because not received within five days from the date of sentence. Petitioner testified upon this hearing, as he had theretofore asserted in his various proceedings which will be hereinafter referred to, that the written notice of appeal, etc., were prepared on March 18th and given to the Sheriff's agent in Dallas for mailing. He explains the papers being dated March 20th by the statement that as the 19th was a Sunday, he knew they could not reach the Clerk's office until the 20th, which was the last...