Miller v. Sanford, 11310.

• Decision Date: 11 July 1945
• Docket Number: No. 11310.,11310.
• Citation: 150 F.2d 637
• Parties: MILLER v. SANFORD, Warden.
• Court: U.S. Court of Appeals — Fifth Circuit

150 F.2d 637 (1945)

MILLER v. SANFORD, Warden.

No. 11310.

Circuit Court of Appeals, Fifth Circuit.

July 11, 1945.

William Roy Miller, in pro. per.

M. Neil Andrews, U. S. Atty., and Harvey H. Tisinger, Asst. U. S. Atty., both of Atlanta, Ga., for appellee.

Before SIBLEY, HUTCHESON, and LEE, Circuit Judges.

HUTCHESON, Circuit Judge.

On March 14, 1939, appellant, William Roy Miller, was convicted in the District Court of the United States for the Southern District of Texas, on six counts of an indictment under Sec. 347, Title 18 U.S.C. A., and was given a sentence of five years on each of counts 1, 2 and 3, to be concurrent, and of five years on counts 4, 5, and 6, to be concurrent with each other, but cumulative of the five years on counts 2 and 3, 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 at Dallas, in the Northern District of Texas.

Instant in and out of season since his conviction to reverse it,¹ or otherwise set it aside,² this, an appeal from a judgment in a habeas corpus proceeding, is his current effort to obtain relief or release from it. Invoking Cochran v. Kansas, 316 U. S. 255, 62 S.Ct. 1068, 86 L.Ed. 1453, appellant sought a discharge from custody on the ground that the action of the trial court in ordering him returned to the Northern District of Texas, whence after conviction³ there he had been brought to Houston for trial, prevented him from filing his notice of appeal within the five days allowed therefor.⁴

Upon the facts set out in note 4, the District Judge concluded that, though unintentionally and with no desire whatever to injure the defendant, the trial court, by his order returning the defendant to the jurisdiction of the court of the Northern District and his failure to have him returned as requested did prevent the free exercise of the defendant's right to appeal which would have been timely exercised but for such removal. Concluding further, however, that such prevention did not deprive him of any substantial right, and was, therefore, not prejudicial to him for the reason that the only assignments of error he made were not well taken, he held, citing Briggs v. White, 8 Cir., 32 F.2d 108, that the writ should be discharged and the petitioner remanded to custody.

We assume, without deciding, that the District Judge was right in his view that appellant would have been entitled to release by habeas corpus if he had shown, that his appeal was prevented by the action of the court or its officers, and that he had meritorious grounds for appeal. We think it plain, however, that he was wrong in concluding that the filing of the appeal was so prevented. The judgment discharging the writ must, therefore, be affirmed on the ground that the evidence wholly fails to show that defendant was deprived of his right to appeal. The record shows nothing more than that, as a result of the circumstances in which he found himself by reason of having been indicted and convicted in two jurisdictions and then returned to the jurisdiction of his first conviction, the filing of his notice of appeal was attended with more difficulties than would otherwise have been the case. There is no proof whatever that anything that was done had the effect of depriving him of the right to file, or that he could not have filed, his notice within the five days allowed. The law fixes the time for filing and requires the appeal to be filed within that time. It does not guarantee that a defendant will be held in a local jail or at a particular place until his notice of appeal is filed. If it were a fact that plaintiff had requested writing materials to prepare and file his appeal papers, or that they be forwarded after completion, and the request had been refused, a different question would be presented. Cochran v. Kansas, cited by appellant in support of his application, does not at all support it. All that it held was that allegations that "officials of the state penitentiary enforcing prison rules there in effect had suppressed appeal documents he had prepared" entitled him to a hearing on their truth. Saying, "The State properly concedes that if the alleged facts pertaining to suppression of Cochran's appeal `were disclosed as being true before the supreme court of Kansas, there would be no question but that there was a violation of the equal protection clause of the Fourteenth Amendment'", the court concluded, "And in Kansas, habeas corpus is recognized as affording a remedy for a person held in prison in violation of a right guaranteed by the Federal Constitution 316 U.S. 255, 62 S.Ct. 1069."

The action of the District Judge in discharging the writ and remanding the petitioner was right. His judgment is affirmed.

1 In cause No. 9086 on the docket of this court, William Roy Miller and Robert W. Cole v. United States, appellant Miller made his first effort by appeal from the judgment, assigning the following errors:

(1) In overruling the motion to quash the indictment.

(2) In refusing the motion to direct a verdict of acquittal as to defendant on the second and fifth counts of the indictment.

(3) That the verdict was against the law and the evidence.

The United States moved to dismiss because the appeal had not been timely taken, and in a per curiam opinion, reported in 5 Cir., 104 F.2d 343, writ of error denied, 308 U.S. 549, 60 S.Ct. 87, 84 L.Ed. 462, the motion to dismiss was granted and the appeal was dismissed.

2 In cause No. 10152 on the docket of this court, Miller filed a petition for writ of certiorari to the District Court in which he set up the facts now relied on, and sought relief from the judgment on the ground that his removal from the district prior to the...