Montos v. Smith, 26231.
| Citation | 406 F.2d 1243 |
| Decision Date | 03 February 1969 |
| Docket Number | No. 26231.,26231. |
| Parties | Nick MONTOS, Appellant, v. S. Lamont SMITH, Warden, Georgia State Prison, Reidsville, Georgia, Appellee. |
| Court | United States Courts of Appeals. United States Court of Appeals (5th Circuit) |
Nick Montos, pro se.
Arthur K. Bolton, Atty. Gen., Mathew Robins, Marion O. Gordon, Asst. Atty. Gen., Courtney Wilder Stanton, Atlanta, Ga., for appellee.
Before JOHN R. BROWN, Chief Judge, and THORNBERRY and MORGAN, Circuit Judges.
Appellant Montos seeks review of an order of the district court denying his petition for a writ of habeas corpus, after an evidentiary hearing where he was represented by court-appointed counsel. To exhaust his state post-conviction remedies, Montos filed a petition for habeas corpus in the City Court of Reidsville, Georgia, which denied relief. Prior to the date on which appellant filed his federal habeas petition, the State of Georgia enacted its new Habeas Corpus Act, Georgia Code § 50-127, effective July 1, 1967. That statute provides that the "superior courts" of the county of confinement shall have "exclusive jurisdiction" of habeas corpus actions. Appellant therefore has failed to exhaust available state post-conviction remedies. Reardon v. Smith, 5th Cir. 1968, 403 F.2d 773 November 14, 1968.
In several cases where state prisoners seeking federal habeas relief have failed to exhaust state remedies, this Court has affirmed the denial of relief, but without prejudice to the merits of the claims, thereby in effect remanding the matters for initial state court action.1 Undeveloped factual issues precluded immediate determination of the merits in the absence of an evidentiary hearing which "should be had ordinarily in those state courts where a fully effective, practicable procedure is available under state law." Peters v. Rutledge, 5th Cir. 1968, 397 F.2d 731, 735. The district court in this case, however, conducted an evidentiary hearing and there are no factual issues requiring further development. In these circumstances, the principles of comity, justice, and judicial efficiency underlying the exhaustion doctrine, see Peters v. Rutledge, supra, 397 F.2d at 738, do not call for remand to the state courts. Accordingly, we decide appellant's claim on its merits.
Having studied the briefs and record, we are convinced that the judgment of the court below is correct and that summary disposition of the appeal without oral argument is appropriate. Accordingly, the Clerk of this Court has been directed, pursuant to new Rule 18 of the Rules of the United States Court of Appeals for the Fifth Circuit, to transfer this case to the summary calendar and notify the parties of the transfer.2
Appellant first contends that the State of Georgia waived its power to require service of the sentence under attack by returning him to federal custody, following his conviction and sentence in the Georgia courts, for completion of a federal sentence he was then serving. It is well established, however, that pursuant to a principle of reciprocal comity one sovereignty, consistent with its right to resume custody over the prisoner, may "temporarily waive its right to the exclusive jurisdiction of a person by delivering him over to another sovereignty" for trial or service of sentence. Lunsford v. Hudspeth, 10th Cir. 1942, 126 F.2d 653, 655. Appellant's contention is therefore without merit.
Appellant next contends that he was denied due process by a conflict between the oral and written pronouncements of his sentence. He testified that the trial judge orally sentenced him to a term of between ten and twenty years in accordance with the recommendations of the jury. The written judgment contained the further statement that the sentence was to run consecutively with any other sentence the defendant was serving. Appellant maintains that the written judgment constituted an unconstitutional enlargement of the sentence as orally pronounced. See Bartone v. United States, 1963, 375 U.S. 52, 84 S.Ct. 21, 52 L.Ed.2d 11. But the oral sentence, in the absence of an expression that it was to be served concurrently with the federal sentence, would as a matter of state law run consecutively to the federal sentence. Grimes v. Greer, 1967, 223 Ga. 628, 157 S.E.2d 260.3 The written judgment therefore only made explicit what was implicit in the oral pronouncement and did not constitute an enlargement thereof. We likewise find no merit in appellant's further contention that the oral sentence misled him into believing that the sentence was to run concurrently, thereby inducing him not to appeal the conviction. The written judgment clearly states that the sentences were to run consecutively, and we cannot agree that due process requires more.
Finally, appellant contends that the sentence is unconstitutionally ambiguous, uncertain and indefinite. It is only required that the sentence "should reveal with fair certainty the intent of the court and exclude any serious misapprehensions by those who must execute them; the elimination of every possible doubt cannot be demanded." United States v. Daugherty, 1926, 269 U.S. 360, 46 S.Ct. 156, 157, 70 L.Ed. 309. The judgment of the state court specifies that the sentence is "to be computed from the date of your reception at said State Penitentiary" and is to "run consecutively with any sentence that the Defendant is now serving, whether it be Federal or State." Appellant was then serving a federal sentence. A fair reading of the judgment indicates that the sentence was to commence when appellant was returned to the custody of the State and received at the State Peniteniary following the completion of his federal sentence. This would seem to fall well within the bounds of constitutionally required exactitude.
Accordingly, the judgment of the district court denying appellant's petition for a writ of habeas corpus is hereby affirmed on the merits.
APPENDIX
RULES OF THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT
DOCKET CONTROL
In the interest of docket control, the chief judge may from time to time, in his discretion, appoint a panel or panels to review pending cases for appropriate assignment or disposition under Rules 18, 19 or 20 or any other rule of this court.
SUMMARY CALENDAR
(a) Whenever the court, sua sponte or on suggestion of a party, concludes that a case is of such character as not to justify oral argument, the case may be placed on the summary calendar.
(b) A separate summary calendar will be maintained for those cases to be considered without oral argument. Cases will be placed on the summary calendar by the clerk, pursuant to directions from the court.
(c) Notice in writing shall be given to the parties or their counsel...
To continue reading
Request your trial
-
Moody v. Holman
...sovereign take custody. See Causey , 621 F.2d at 692–94 ; DeLong , 474 F.2d at 720 ; Chunn , 451 F.2d at 1006 ; Montos v. Smith , 406 F.2d 1243, 1245 (5th Cir. 1969) ; Zerbst v. McPike , 97 F.2d 253, 254 (5th Cir. 1938). Remeta is also in accord with the general law in our sister circuits. ......
-
Wynn v. Smith
...factual setting." Pate v. Holman, 343 F.2d 546, 547 (C.A.5 1965). See, e. g., O'Neal v. Beto, 428 F.2d 1164 (C.A.5 1970); Montos v. Smith, 406 F.2d 1243 (C.A.5 1969); Beto v. Martin, 396 F.2d 432 (C.A.5 1968); Hill v. Beto, 390 F.2d 640 (C.A.5 1968); Cobb v. Balkcom, 339 F.2d 95 (C.A.5 1964......
-
U.S. v. Meester
...misapprehensions by those who must execute them. The elimination of every possible doubt cannot be demanded.' " Montos v. Smith, 406 F.2d 1243, 1246 (5th Cir.1969) (quoting United States v. Daugherty, 269 U.S. 360, 363, 46 S.Ct. 156, 157, 70 L.Ed. 309, 313 (1926)). In determining the terms ......
-
United States ex rel. Merritt v. Hicks
...issue the resolution of which is predetermined by established federal principles. 389 U.S. at 43, 88 S.Ct. at 196; See Montos v. Smith, 406 F.2d 1243 (5th Cir. 1969); Green v. Wyrick, 414 F.Supp. 343 (W.D. Mo.), aff'd per curiam, 542 F.2d 1178 (8th Cir. 1976); Emmett v. Ricketts, 397 F.Supp......