Rice v. Simpson, Civ. A. No. 2583-N.

• Decision Date: 17 July 1967
• Docket Number: Civ. A. No. 2583-N.
• Citation: 271 F. Supp. 267
• Parties: William S. RICE, Petitioner, v. Curtis M. SIMPSON, Warden, Kilby Prison, Montgomery, Alabama, Respondent.
• Court: U.S. District Court — Middle District of Alabama

271 F. Supp. 267

William S. RICE, Petitioner, v. Curtis M. SIMPSON, Warden, Kilby Prison, Montgomery, Alabama, Respondent.

Civ. A. No. 2583-N.

United States District Court M. D. Alabama, N. D.

July 17, 1967.

MacDonald Gallion, Atty. Gen., and Paul T. Gish, Jr., Asst. Atty. Gen., State of Alabama, Montgomery, Ala., for respondent.

Oakley W. Melton, Jr., Montgomery, Ala., court-appointed attorney for petitioner.

ORDER

JOHNSON, Chief Judge.

Petitioner now presents to this Court his application for a writ of habeas corpus. He alleges that in the Circuit Court of Pike County, Alabama, in February 1962, upon his pleas of guilty in state court criminal cases Nos. 6427, 6428 and 6429, he was sentenced by said state court to an aggregate of eight years in the state penitentiary. Petitioner alleges, further, that in August 1964 his pleas, and the judgment and sentence thereon in each of said state court cases, were set aside upon his application, and the proof offered in support thereof, for the writ of error coram nobis. The petition now presented to this Court further avers that in December 1964 he was retried and, upon conviction in the same circuit court, was sentenced to a term of ten years in case No. 6427, ten years in case No. 6428, and in May 1965, after a conviction, was sentenced to a term of five years in case No. 6429. Thus, the sentences, after petitioner was successful in his coram nobis proceeding and after he was retried and convicted, now aggregate twenty-five years.

Petitioner alleges that, in resentencing him, the Circuit Court of Pike County failed to give him credit for prior time served on the original sentences, and he alleges, further, that the sentences resulting in his present incarceration that were imposed by the Circuit Court of Pike County, Alabama, in December 1964 and May 1965, which sentences aggregate over three times the aggregate sentences originally imposed in said cases, violate his constitutional rights in that said greater sentences constitute punishment for his having exercised and been successful in his post-conviction coram nobis proceeding. Petitioner alleges that it is constitutionally impermissible for the State of Alabama to force upon him the risk (here, a reality) of more severe punishment as a penalty for his having exercised and been successful in Alabama post-conviction proceedings.

Petitioner very candidly admits that he has not presented this issue to the courts of the State of Alabama since he was reconvicted and resentenced by the Circuit Court of Pike County, Alabama, in December 1964 and May 1965. He argues, instead, that his case is one of "exceptional circumstances" in that there is an absence of available state corrective processes in his case.

Upon an examination of the petition as now presented and the excellently written argument filed in support thereof, this Court is of the opinion that petitioner is afforded no post-conviction remedies by the State of Alabama where his only contentions, in support of his claim that his present incarceration is unconstitutional, are (1) that he was not given credit on resentencing for prior time served upon sentences which were later set aside by the courts of the State of Alabama as being unconstitutional, and (2) that the sentences resulting in his present incarceration were imposed as, and serve as, punishment for his...