Reed v. United States

• Decision Date: 21 December 1964
• Docket Number: relative to Crim. No. 42152.,Civ. A. No. 64-B-94
• Citation: 236 F. Supp. 967
• Parties: Emory Gene REED, Petitioner, v. The UNITED STATES, Respondent.
• Court: U.S. District Court — Southern District of Texas

236 F. Supp. 967

Emory Gene REED, Petitioner, v. The UNITED STATES, Respondent.

Civ. A. No. 64-B-94, relative to Crim. No. 42152.

United States District Court S. D. Texas, Brownsville Division.

December 21, 1964.

Emory Gene Reed, pro se.

James R. Gough, Asst. U. S. Atty., Houston, Tex., for the United States.

GARZA, District Judge.

Petitioner, Emory Gene Reed, brings his second motion to vacate and set aside his sentence under 28 U.S.C.A. § 2255.

On September 18, 1961, Petitioner pled guilty to an indictment charging him with violation of the Dyer Act, 18 U.S.C.A. § 2312. He was sentenced to five years in the penitentiary and a fine of $1,000.00. The sentence was suspended, conditioned on good behavior, and he was placed on probation with supervision which was to begin at the time he was released by authorities of Louisiana, where charges against him were pending. After sentencing, Petitioner was turned over to officers of the State of Texas, and on November 11th he participated in a jail break and escaped from the Cameron County jail. On November 13, 1961, a bench warrant was issued by this Court, and after Petitioner was apprehended and returned to jail in Brownsville, he was brought before this Court for a hearing on revocation of his probation, which was held on December 4, 1961. Petitioner's probation was revoked and his sentence was reduced to three years to serve. He was again turned over to Texas state authorities who had filed complaints against him. He was indicted and tried by the State of Texas and sentenced to four years to serve. On November 1, 1961, Petitioner was released by the State of Texas to the United States marshal who took him to the federal penitentiary in Leavenworth, Kansas, where he began serving his 3-year sentence imposed by this Court.

Petitioner's prior motion for correction of an illegal sentence was based upon his claim that he should be given credit against his said sentence for the time spent in the State prison. Since this Court had not provided that the federal sentence be concurrent with any State sentence which might be imposed, Petitioner's motion was overruled on May 27, 1964, under the authority of 18 U.S.C.A. § 3568. Leave to appeal this ruling in forma pauperis was denied by the U. S. Court of Appeals for the Fifth Circuit on July 31, 1964.

Petitioner now claims that this Court was without jurisdiction to revoke his probation and impose a prison term because the period of probation had not yet begun.

18 U.S.C.A. § 3653, deals with revocation of probation for violation "occurring during the probation period." Petitioner argues that his period of probation was to begin when he was released from jail or penitentiary, and his escape and subsequent violations of the law were not committed during the period of probation. Petitioner relies upon cases holding that a court is without jurisdiction to revoke probation for violations occurring after the expiration of the probationary period. Sanford v. King, 5th Cir., 1943, 136 F.2d 106. The court there had to determine when the period of probation began in order to decide whether it had expired before the offense occurred which was made the basis of the revocation.

As stated in Judge Waller's concurring opinion in James v. United States, 5th Cir., 1944, 140 F.2d 392, at 394, the Sanford case did not...