Mott v. Dail, Civ. No. 2729.
| Decision Date | 26 January 1972 |
| Docket Number | Civ. No. 2729. |
| Citation | 337 F. Supp. 731 |
| Court | U.S. District Court — Eastern District of North Carolina |
| Parties | Bennie L. MOTT, Petitioner, v. Lonnie F. DAIL and the State of North Carolina, Respondents. |
Bennie L. Mott, pro se.
Robert Morgan, N. C. Atty. Gen., and Jacob L. Safron, Asst. Atty. Gen., Raleigh, N. C., for respondents.
Petitioner, a state prisoner, filed in forma pauperis an application for a writ of habeas corpus. Petitioner was convicted upon his plea of guilty to the charge of involuntary manslaughter at the June 26, 1970, Session of Cumberland County Superior Court, and received a sentence of not less than four nor more than five years.
His sole contention in this court is that he is entitled to credit on his sentence for time spent in custody prior to trial.
Petitioner has not presented his claim to the state courts, but it is clear from the recent North Carolina decisions in State v. Virgil, 276 N.C. 217, 172 S.E.2d 28 (1970), and State v. Walker, 7 N.C.App. 548, 172 S.E.2d 881 (1970) that current North Carolina case law makes state proceedings ineffective. Therefore, petitioner will not be required to pursue his claim in the state courts.
The decision in this case is governed by the rationale in Cole v. North Carolina, 419 F.2d 127 (4th Cir. 1969). In that case Cole sought credit for time spent in custody pending appeal. Under the provisions of North Carolina General Statute § 15-186.1 a person tried after ratification of the statute is entitled to credit for time spent in custody pending appeal. Cole was tried prior to the enactment of the statute. However, the State of North Carolina conceded and the Fourth Circuit Court of Appeals held that when the statute was made prospective only an unlawful discrimination arose against persons tried prior to the ratification of the statute. The court ordered that credit be given.
The situation in the instant case is analogous to Cole. North Carolina General Statute § 15-176.2, ratified July 19, 1971, allows credit for time spent in custody prior to trial. The statute applies only to cases tried after the date of ratification. Petitioner was tried prior to enactment of the statute. Applying the reasoning underlying Cole, it is clear that petitioner is being subjected to an invidious discrimination and that he is entitled to credit for all time spent in custody prior to trial. See, Withers v. North Carolina, No. 71-1111 (4th Cir. Oct. 20, 1971). Now,...
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Jackson v. State of Ala.
...they were sentenced before or after the enactment of the statute. See Ham v. North Carolina, 4 Cir. 1973, 471 F.2d 406; Mott v. Dail, E.D.N.C.1972, 337 F.Supp. 731, appeal dismissed, 4 Cir. 1973, 473 F.2d 908. See also Cole v. North Carolina, 4 Cir. 1969, 419 F.2d 127; People v. Frye, 1966,......
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...36 L.Ed.2d 439 (1973). Where State law clearly would make pursuit of a State remedy futile, exhaustion is not required. Mott v. Dail, 337 F.Supp. 731 (E.D.N.C.1972).In Fuentes v. State, 349 A.2d 1 (Del.Sup.Ct.1975), the court, in applying a Mullaney test in finding a Delaware statute uncons......
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...377; State v. Montoya (1968) 79 N.M. 353, 443 P.2d 743; State v. Virgil (1970) 276 N.C. 217, 226, 172 S.E.2d 28; cf. Mott v. Dail (E.D.N.C.1972) 337 F.Supp. 731; People ex rel. Carroll v. Frye (1966) 35 Ill.2d 604, 609--610, 221 N.E.2d 262; cf. Commonwealth v. Snyder (1967) 427 Pa. 83, 103-......
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Godbold v. Wilson
...In support of this argument, he cites two federal cases, Ham v. North Carolina, 471 F.2d 406, 408 (4th Cir. 1973), and Mott v. Dail, 337 F.Supp. 731, 732 (E.D.N.C.1972), dismissed mem., 473 F.2d 908 (4th Cir. 1973), and several state cases. I decline to adopt this approach because the law d......