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

CourtUnited States District Courts. 11th Circuit. Middle District of Alabama
Writing for the CourtOakley W. Melton, Jr., Montgomery, Ala., court-appointed attorney, for petitioner
Citation274 F. Supp. 116
PartiesWilliam S. RICE, Petitioner, v. Curtis M. SIMPSON, Warden, Kilby Prison, Montgomery, Alabama, Respondent.
Docket NumberCiv. A. No. 2583-N.
Decision Date26 September 1967

274 F. Supp. 116

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.

September 26, 1967.


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

274 F. Supp. 117

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

ORDER

JOHNSON, Chief Judge.

The petitioner, William S. Rice, by leave of this Court, files in forma pauperis his application for a writ of habeas corpus. He alleges that in the Circuit Court of Pike County in February 1962, upon pleas of guilty in four separate state court criminal cases, he was sentenced to an aggregate of ten years in the state penitentiary.1 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 by the Circuit Court of Pike County, Alabama, upon his application for a writ of error coram nobis and the proof offered in support thereof. The basis for the state court's action was that petitioner was not represented by counsel as constitutionally required by Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799. The petition now presented avers that in December 1964 he was retried in state cases Nos. 6427 and 6428, and upon conviction in the same circuit court, before the same circuit judge, he was sentenced to a term of ten years in No. 6427 and ten years in No. 6428. Petitioner further alleges that in May 1965 in case No. 6430, after conviction, he was sentenced to a term of five years. Case No. 6429 was nolprossed on motion of the state solicitor in May 1965. Thus, the sentences, after petitioner was successful in his coram nobis proceeding and after he was retried and convicted in these second degree burglary cases—which, by statute in Alabama, carry a maximum sentence of ten years each2—now aggregate twenty-five years.

Petitioner contends that in resentencing him the State of Alabama, acting through the circuit judge of the Circuit Court of Pike County, Alabama, failed to give him credit for prior time served on the original sentence; and he alleges, further, that the sentences resulting in his present incarceration that were imposed by the Circuit Court of Pike County in December 1964 and in May 1965, which sentences amount to 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 his right to and for having been successful in a post-conviction coram nobis proceeding. Petitioner contends that it is constitutionally impermissible for the State of Alabama to deny him credit for the time served on the void sentence and to force upon him the risk— here a reality—of more severe punishment as a penalty for his having exercised his right to and for having been successful in Alabama post-conviction proceedings. Petitioner did not present either of these issues to the courts of the State of Alabama on the question of exhaustion of state remedies as a state prisoner is ordinarily required to do under 28 U.S.C. § 2254. Petitioner takes the position that his case is one of "exceptional circumstances" in that there is an absence of available state corrective processes.

Upon an examination of the petition as presented, this Court, by formal order entered on July 17, 1967, held that 28 U.S.C. § 2254 did not bar the filing of petitioner's application for a writ of habeas corpus in this court. In making this determination, the Court stated, 271 F.Supp. 267:

"Upon an examination of the petition as now presented and the excellently written argument filed in support thereof, this Court is of the opinion
274 F. Supp. 118
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 having exercised and been successful in Alabama post-conviction proceedings. In this connection, Judge Cates, speaking for the Alabama Court of Appeals in Aaron v. State, 43 Ala.App. 450, 192 So.2d 456 (Nov. 29, 1966), wrote:
"`Moreover, we do not think that Alabama affords, after motion for new trial wherein the trial judge's power over judgment is kept alive, any post conviction remedy to assert that a sentence is invalid because of a claim of excessiveness if the second sentence does not go beyond the statutory limit. Isbell v. State, 42 Ala.App. 498, 169 So.2d 27. Our Supreme Court has failed to adopt any general rule that our remedy of coram nobis automatically assimilates all rights imposed on state trials by the Fourteenth Amendment. See Wilson, Federal Habeas Corpus and the State Court Criminal Defendant, 19 Vand.L.Rev. 741.'

"And, again, the same Judge, speaking for the same court, in March 1967 in Ex Parte Merkes, 43 Ala.App. 640, 198 So.2d 789, reiterated the above-quoted statement from the Aaron case and stated further, `We see no reason to go into what should be the rule of credit for prior time until we have to.'

"The above cases, appearing to represent the law of the State of Alabama upon the questions now presented in petitioner's application, make it apparent that Title 28, § 2254 of the United States Code, does not bar the filing of petitioner's application for the writ of habeas corpus as now presented."

Accordingly, the respondent Warden of Kilby Prison was directed to show cause why the writ of habeas corpus as prayed for by the petitioner, William S. Rice, should not be issued. Upon petitioner's request, the Honorable Oakley W. Melton, Jr., Attorney at Law, Montgomery, Alabama, was appointed to represent petitioner. The case was set for oral hearing before the Court, and now, upon the pleadings, the evidence, and the briefs and arguments of the parties, this Court proceeds to make the appropriate findings of fact and conclusions of law.

The evidence presented is uncontroverted. Petitioner's allegations as above outlined are admitted except the conclusions that he makes as to the reason for the imposition of greater sentences on being resentenced after his "successful" post-conviction proceeding. Petitioner was originally sentenced in the four cases, Nos. 6427, 6428, 6429 and 6430, on February 16, 1962. He entered upon the service of the four-year sentence imposed in No. 6427 on February 16, 1962. He continued upon the service of this four-year sentence until the sentence was set aside by the Circuit Court of Pike County, Alabama, on August 28, 1964. Petitioner earned no statutory and industrial good time3 during this period of service by reason of infractions of prison rules. However, he did not lose any of the 2 years, 6 months and 12 days he had served on No. 6427 from February 16, 1962 until August 28, 1964. When petitioner was resentenced in December 1964 to ten years in case No. 6427, he was not given any credit on that sentence, nor on the other sentences imposed in Nos. 6428 and 6430, for the time he had previously served on the sentence in No. 6427 that had been declared void by the State of Alabama. As

274 F. Supp. 119
this Court stated in Hill v. Holman, D.C., 255 F.Supp. 924 (1966)
"The constitutional requirements of due process will not permit the State of Alabama to require petitioner Hill, or any other prisoner for that matter, to be penalized by service in the state penitentiary because of an error made by the state circuit court. Petitioner Hill was entitled to have the illegal sentence vacated. This, of course, was done by the Circuit Court of Jefferson County, Alabama, on September 8, 1964. He is also entitled to have the time he served on the erroneous sentence in case No. 91715 before it was vacated applied on the valid sentence that was imposed in that case by the Circuit Court of Jefferson County, Alabama, on September 8, 1964. This means very simply that Hill has more than served the legal sentence imposed upon him in case No. 91715. The record in this
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28 practice notes
  • State of Texas v. Grundstrom, No. 25423.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (5th Circuit)
    • October 25, 1968
    ...set forth in a district court opinion by Judge Frank Johnson of the Midddle District of Alabama. See Rice v. Simpson, M.D.Ala.1967, 274 F.Supp. 116, aff'd, 5th Cir. 1968, 396 F.2d 499, cert. granted, 393 U.S. 932, 89 S.Ct. 292, 21 L.Ed.2d 268. In light of this case, I understand the rule of......
  • North Carolina v. Pearce Simpson v. Rice, Nos. 413 and 418
    • United States
    • United States Supreme Court
    • June 23, 1969
    ...Rice for his having exercised his post-conviction right of review and for having the original sentences declared unconstitutional.' 274 F.Supp. 116, 121, 122. The judgment of the District Court was affirmed by the United States Court of Appeals for the Fifth Circuit, 'on the basis of Judge ......
  • Tatum v. Schering Corp.
    • United States
    • Supreme Court of Alabama
    • March 18, 1988
    ...prohibits an increase in a sentence in a criminal case by a trial or appellant court after the sentence is imposed. Rice v. Simpson, 274 F.Supp. 116 (1967), affirmed, 396 F.2d 499 (5th Cir.1968), affirmed, 395 U.S. 711, 89 S.Ct. 2072, 23 L.Ed.2d 656 (1969). Because the purpose of punitive d......
  • United States v. Gerard, No. 72-3128
    • United States
    • United States Courts of Appeals. United States Court of Appeals (9th Circuit)
    • February 6, 1974
    ...is not the sole area for the application of Pearce. In the course of that opinion the Court affirmed the decision in Rice v. Simpson, 274 F.Supp. 116 (M.D.Ala.1967). Rice had been convicted in the state court on guilty pleas, but, while serving his sentence, had persuaded the state court to......
  • Request a trial to view additional results
28 cases
  • State of Texas v. Grundstrom, No. 25423.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (5th Circuit)
    • October 25, 1968
    ...set forth in a district court opinion by Judge Frank Johnson of the Midddle District of Alabama. See Rice v. Simpson, M.D.Ala.1967, 274 F.Supp. 116, aff'd, 5th Cir. 1968, 396 F.2d 499, cert. granted, 393 U.S. 932, 89 S.Ct. 292, 21 L.Ed.2d 268. In light of this case, I understand the rule of......
  • North Carolina v. Pearce Simpson v. Rice, Nos. 413 and 418
    • United States
    • United States Supreme Court
    • June 23, 1969
    ...Rice for his having exercised his post-conviction right of review and for having the original sentences declared unconstitutional.' 274 F.Supp. 116, 121, 122. The judgment of the District Court was affirmed by the United States Court of Appeals for the Fifth Circuit, 'on the basis of Judge ......
  • Tatum v. Schering Corp.
    • United States
    • Supreme Court of Alabama
    • March 18, 1988
    ...prohibits an increase in a sentence in a criminal case by a trial or appellant court after the sentence is imposed. Rice v. Simpson, 274 F.Supp. 116 (1967), affirmed, 396 F.2d 499 (5th Cir.1968), affirmed, 395 U.S. 711, 89 S.Ct. 2072, 23 L.Ed.2d 656 (1969). Because the purpose of punitive d......
  • United States v. Gerard, No. 72-3128
    • United States
    • United States Courts of Appeals. United States Court of Appeals (9th Circuit)
    • February 6, 1974
    ...is not the sole area for the application of Pearce. In the course of that opinion the Court affirmed the decision in Rice v. Simpson, 274 F.Supp. 116 (M.D.Ala.1967). Rice had been convicted in the state court on guilty pleas, but, while serving his sentence, had persuaded the state court to......
  • Request a trial to view additional results

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