Remer v. Regan, 9053.

• Decision Date: 30 June 1939
• Docket Number: No. 9053.,9053.
• Citation: 104 F.2d 704
• Parties: REMER, Superintendent of Prison Camp, v. REGAN.
• Court: U.S. Court of Appeals — Ninth Circuit

104 F.2d 704 (1939)

REMER, Superintendent of Prison Camp, v.REGAN.

No. 9053.

Circuit Court of Appeals, Ninth Circuit.

May 26, 1939.

Rehearing Denied June 30, 1939.

John A. Carver, U. S. Atty., and E. H. Casterlin, Asst. U. S. Atty., both of Boise, Idaho, Frank Griffin, Asst. U. S. Atty., of Kellogg, Idaho, James P. O'Brien, Sp. Asst. to Atty. Gen., and A. E. Gottshall, of Washington, D. C., for appellant.

Daniel C. Regan, in pro. per.

Before WILBUR, MATHEWS, and HEALY, Circuit Judges.

WILBUR, Circuit Judge.

The appellee, on April 16, 1934, was sentenced to serve a period of one year and one day on the first count of an indictment and two years on the remaining counts.The execution of said two year sentence was suspended for three years and defendant placed on probation at the expiration of the service of sentence on the first count.He began to serve sentence on February 17, 1934, and at the expiration of his term less deductions for good conduct he was released on January 26, 1935, to the custody of the probation officer in pursuance of the original sentence.

During the probationary period the appellee was arrested for violation of his probation and brought before the court for such violation.The court set aside the probation and sentence and resentenced the defendant to three years imprisonment.On February 6, 1937, he began to serve this sentence.

If the sentence of the year and a day and that of two years under the original judgment ran concurrently, as appellee contends, he was entitled to release and the order of the trial court directing his release was correct.

More than two years has now elapsed since the appellee was returned to custody and he would be entitled to his release even if the sentences ran consecutively unless the order of the court increasing his sentence from two to three years on the second counts was correct.

The appellee, on August 29, 1938, filed a petition for writ of habeas corpus in the United States District Court for the District of Idaho.He claimed in his petition that the sentence for one year and one day on the first count and two years on the remaining counts of the indictment, ran concurrently, and that the time he served before his release, plus what he has served since his return to prison, had completed the service of the two year term, less allowances for good conduct.His contention was based upon the proposition that the portion of the sentence releasing him on probation at the expiration of the sentence of a year and a day was void and the resentence for a greater term than two years on the other counts was invalid.This contention was based on the decision of the Circuit Court of Appeals for the Second Circuit in United States v. Greenhaus, 85 F.2d 116, 107 A.L.R. 630, wherein it was held that a sentence on several counts of an indictment was a single sentence and, hence, under the decision of the Supreme Court in United States v. Murray, 275 U.S. 347, 48 S.Ct. 146, 72 L.Ed. 309, and, under the law authorizing probation (18 U.S.C.A. § 724) probation could not be granted upon some of the counts of the indictment with imprisonment upon other counts of the indictment.The appellee argued that inasmuch as the probationary feature of the sentence imposed upon him was invalid he was required to serve only for the period specified in the sentence.

He contended that the two periods (one year and a day, and two years) ran concurrently.However, on September 5, 1938, before the return to the writ, the sentences had expired even if they did not run concurrently.On September 16, 1938, the trial court released the prisoner upon the ground stated in his order "that the petitioner has served the full terms of one year and one day and two years which expired on the 5th day of September, 1938, upon allowance of good time."The trial court cited no authorities and wrote no opinion, but it was conceded in the argument before us that this decision was based upon the decision of the Circuit Court of Appeals for the Second Circuit in United States v. Greenhaus, supra, although the Circuit Court of Appeals for the Tenth Circuit had held to the contrary.White v. Steigleder, 37 F.2d 858.If that decision of the Second Circuit Court of Appeals were correct, the decision of the trial court releasing the appellee was right.However, that decision was overruled by the Supreme Court on February 7, 1938(Cosman v. United States, 303 U.S. 617, 58 S.Ct. 527, 82 L.Ed. 1083), on an appeal from a decision of the Circuit Court of Appeals for the Second Circuit, 94 F.2d 1020, wherein that court had followed its previous decision in United States v. Greenhaus, supra.¹Apparently this decision of the Supreme Court was not called to the attention of the court below, nor is it apparent from the face of the decision of either the Supreme Court or the...