Powell v. Sanford, 11638.
| Decision Date | 09 July 1946 |
| Docket Number | No. 11638.,11638. |
| Citation | 156 F.2d 355 |
| Parties | POWELL v. SANFORD, Warden. |
| Court | U.S. Court of Appeals — Fifth Circuit |
James O. Powell, in pro. per., of Leavenworth, Kan., for appellant.
M. Neil Andrews, U. S. Atty., and Harvey H. Tisinger, Asst. U. S. Atty., both of Atlanta, Ga., for appellee.
Before HUTCHESON, WALLER, and LEE, Circuit Judges.
This is an appeal from a judgment discharging a writ of habeas corpus issued by the court below upon the petition of appellant, and remanding appellant to the custody of the warden of the United States penitentiary in Atlanta, Georgia.
The facts are: On October 23, 1942, petitioner was sentenced, following conviction of a local crime, to a term of two to ten years in the West Virginia State prison at Moundsville, West Virginia. On or about May 13, 1944, petitioner escaped therefrom. On June 5, 1944, Huntington, West Virginia, city and West Virginia State police, on a warrant charging that petitioner was an escaped prisoner, apprehended him and took him into custody. After serving three days on the remaining portion of his sentence in the West Virginia penitentiary, petitioner was arraigned before a United States Commissioner for violation of the National Motor Vehicle Theft Act, 18 U.S.C.A. § 408, and for violation of the Selective Training and Service Act, 50 U.S.C.A.Appendix, § 301 et seq. Subsequently, in the United States District Court for the Southern District of West Virginia, Bluefield Division, he was indicted, tried, and convicted on a count charging him with transporting a stolen automobile in interstate commerce and on a count charging him with failing to have a Selective Training and Service registration card. Three-year sentences, to run concurrently, were imposed under each count, and service of the sentences thus imposed was begun on June 26, 1944.
Only one question is presented: Did the United States District Court for the Southern District of West Virginia have jurisdiction to sentence petitioner to the custody of the Attorney General of the United States while petitioner was in the custody of the State of West Virginia?
The Supreme Court has given a clear answer to this question. In Ponzi v. Fessenden, 258 U.S. 254, 259, 260, 42 S.Ct. 309, 310, 66 L.Ed. 607, 611, 22 A.L.R. 879, that Court said:
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