Mitchell v. Shank, 283.

• Decision Date: 16 May 1952
• Docket Number: No. 283.,283.
• Citation: 105 F. Supp. 274
• Parties: MITCHELL v. SHANK, Warden.
• Court: U.S. District Court — Eastern District of Kentucky

105 F. Supp. 274

MITCHELL v. SHANK, Warden.

No. 283.

United States District Court E. D. Kentucky, Catlettsburg Division.

May 16, 1952.

James William Mitchell, pro se.

Claude P. Stephens, U. S. Atty., Kit C. Elswick, Asst. U. S. Atty., both of Lexington, Ky., for respondent.

SWINFORD, District Judge.

James William Mitchell is now held prisoner in the Federal Correctional Institution at Ashland, Kentucky. He is serving a fifteen months sentence imposed by Judge Leslie R. Darr, of the Eastern District of Tennessee. He filed this petition for a writ of habeas corpus in forma pauperis. He contends that he is entitled to the writ by reason of the following alleged facts:

On December 2, 1946, the petitioner was sentenced to the Tennessee penitentiary for three years by the Tennessee state court on a charge of housebreaking.

On December 4, 1946, the Federal Court at Knoxville, Tennessee, sentenced him on a Federal charge "to a term of fifteen months, to run consecutively with his three year state sentence." He was committed to the state penitentiary. No detainer was placed by the federal authorities with the state authorities. On December 2, 1948, he was discharged by term expiration from the Tennessee prison.

On July 19, 1949, he was again sentenced on an additional State of Tennessee charge to four years and one day in the Tennessee penitentiary. He was released from the institution upon completing the maximum expiration of his term on February 20, 1952.

Upon his release he was immediately taken into Federal custody and committed to the Federal institution in which he is now held for service of the fifteen months sentence imposed by Judge Darr at Knoxville on December 4, 1946.

The petitioner now claims that with the record reflecting the foregoing steps he is entitled to relief on the following grounds, which I quote from his petition:

"He was not permitted a hearing in Federal Court. That he was taken directly to Lexington, Kentucky and held immured until February 26, 1952 at which date he was incarcerated in the Federal Correctional Institution, Ashland, Kentucky on a sentence that had expired.

"He should have been afforded a hearing by a Federal Court because it is to be considered that the Federal Government had lost jurisdiction in his case by not issuing a Detainer to hold him in Custody before his release from Prison, December 2, 1948.

"He believes that at the time of sentencing, The Honorable Leslie R. Darr had no intentions that the sentence should be extended to cover a period of years before taking effect. It is believed he intended the original sentence to take effect immediately upon your petitioners release from prison December 2, 1948. It is plain to be seen that the intentions of the Honorable Judge was not carried out."

To this petition the defendant filed a motion to dismiss.

The law on the facts of this case is well settled. It is fixed entirely by statute. U.S.C.A. Title 18, § 3568, provides:

"The sentence of imprisonment of any person convicted of an offense in a court of the United States shall commence to run from the date on which such person is received at the penitentiary, reformatory, or jail for service of said sentence.

"If any

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