Ramsey v. United States, 24748.
Decision Date | 27 April 1972 |
Docket Number | No. 24748.,24748. |
Citation | 463 F.2d 815 |
Parties | Charles W. RAMSEY, Appellant, v. UNITED STATES of America et al. |
Court | U.S. Court of Appeals — District of Columbia Circuit |
Mr. Edward L. Merrigan, Washington, D. C. (appointed by this court) was on the brief for appellant.
Messrs. Thomas A. Flannery, U. S. Atty. at the time the brief was filed, and John A. Terry, Oscar Altshuler, and Stephen W. Grafman, Asst. U. S. Attys., were on the brief for appellees.
Before McGOWAN, LEVENTHAL and MacKINNON, Circuit Judges.
This is an appeal from a summary judgment entered September 10, 1970, dismissing a complaint filed by appellant pro se from Lorton Reformatory, for declaratory relief and writ of mandamus, directing that he be credited with time spent in jail from December 14, 1967 to May 31, 1968, toward service of his sentence, of two to six years, imposed on May 31, 1968, in Criminal Case No. 218-68 (narcotics).
Counsel appointed for the appeal contends now that appellant has never been credited at all for this time. While an appellate court has latitude to amplify the record for facts that are not essentially in dispute,1 in the case before us the ultimate facts, and perhaps some evidentiary facts, are vigorously disputed by the government. The place for resolution of such dispute is the District Court, on appropriate pleading and issue joined.
Appellant also contends the judgment should be reversed, even assuming that some credit was given him for the 1967-68 detention, on the ground that he was entitled to have that credit applied to the sentence in Criminal Case No. 218-68. Appellant relies on the "presentencing credit" provision of 18 U.S.C. § 3568:
The Government's position is that the time between December 14, 1967 and May 31, 1968, was not spent in custody "in connection with the offense or acts for which sentence was imposed" in Criminal No. 218-68, but rather was time spent in service of the sentence imposed in 1960, 2-11 years, in Criminal Case No. 1089-59, on a plea of guilty to assault with intent to commit rape. Appellant was released on parole on September 8, 1966, with 1655 days remaining to be served, or until September 22, 1970.
The Government's brief asserts that on appellant's arrest on December 14, 1967, (a) he was charged with narcotics violations, for which he was later indicted and sentenced in Criminal Case No. 218-68, and (b) he forthwith began service of the days remaining unserved in Criminal Case No. 1089-59, on execution of a parole violator's warrant dated November 1, 1967. The prison sentence imposed May 31, 1968, in Criminal Case No. 218-68, was expressly made consecutive, not concurrent.
The Government's position may well prove sound ultimately, but there are at least some problems in the record as it stands. The Government's motion was supported by a Statement of Material Facts as to which there is no issue, filed under Local Rule 9(h) of the District Court, but there is no affidavit, as required by Rule 56, F.R.Civ.Pro., to establish facts dehors the pleading. For this purpose we cannot fairly refer to the affidavit of the Superintendent of Lorton Reformatory, dated August 9, 1971, captioned in the dockets of both the District Court and this court, which the Government filed in order to contest factual assertions in the appellant's brief. This was filed after the motion for summary judgment was granted.
Furthermore, there is no record foundation for the assertion in the Government's brief (p. 2, fn. 1) that the parole warrant of November 1, 1967, alleged parole violations "totally unrelated to those for which appellant was ultimately indicted in Criminal No. 218-68." We do not necessarily say that this fact is decisive, yet it is not without materiality, as is implied from the Government's use of the...
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