Sadler v. United States, 7128.
| Decision Date | 15 January 1963 |
| Docket Number | No. 7128.,7128. |
| Citation | 313 F.2d 106 |
| Parties | William Ernest SADLER, Appellant, v. UNITED STATES of America, Appellee. |
| Court | U.S. Court of Appeals — Tenth Circuit |
Ralph B. Rhodes, Denver, Colo., for appellant.
Gerald R. Miller, Asst. U. S. Atty. (William T. Thurman, U. S. Atty., was with him on the brief), for appellee.
Before BRATTON, LEWIS and SETH, Circuit Judges.
Appellant was a conditional releasee, 18 U.S.C.A. § 4164, under the supervision of the United States Board of Parole, when he was arrested in Salt Lake City, Utah, as a federal conditional release violator. While in custody, he was further charged with violation of the National Motor Vehicle Theft Act, 18 U.S.C. § 2312 and found guilty upon trial in the District Court for the District of Utah. The conviction was sustained on appeal, Sadler v. United States, 10 Cir., 303 F.2d 664.
The sentence of the lower court committed appellant to imprisonment for a term of three years and eight months "to run concurrently with any term of imprisonment which he may be required to serve in connection with Conditional Release Violation presently pending." The United States Board of Parole has not formally revoked the unserved portion of the appellant's first sentence and, in fact, appellant alleges that he has been informed by prison authorities at Leavenworth, Kansas, that a detainer warrant has been lodged against him and will not be served until he has been released under the recent sentence.
He brought a motion under 28 U.S. C.A. § 2255 to vacate, modify or correct the sentence entered by the Utah District Court on the theory that the concurrency provision of the sentence was a usurpation of the powers of the Board of Parole and thus void. The court recognized the argument in its order of denial, stating:
"* * * my intention was that my sentence should be served concurrently with any remainder of the previous sentence which the petitioner might be called upon to serve, but recognize that it was the prerogative of the Board of Parole to come to a final conclusion as to service of the remainder of the sentence under its control * * *."
Appellant urges that the sentence is patently invalid under the doctrine of Zerbst v. Kidwell, 304 U.S. 359, 58 S.Ct. 872, 82 L.Ed. 1399. There the prisoners sought their release after service of their second term, contending that they began service on the unexpired part of their original sentences at the moment they were again incarcerated. The Supreme Court held that the second sentence interrupted the service of the original sentence and the authority of the Board continued until the original sentence was completed and expired. From this case and others following it concerning the exclusiveness of the Board's power over a parole...
To continue reading
Request your trial
-
Gaddy v. Michael
...122, 124; Adams v. United States (5th Cir. 1970) 432 F.2d 62, 63; Woykovsky v. Chappell, supra (336 F.2d at 928; Sadler v. United States (10th Cir. 1963) 313 F.2d 106, 107. See Nash v. Moseley (10th Cir. 1970) 433 F.2d 923, 924; Moore v. Smith (7th Cir. 1969) 412 F.2d 720, 724; Jefferson v.......
-
Smith v. United States
...judicially imposed sentence. See Saylor v. United States Board of Parole, 120 U.S.App.D.C. 206, 345 F.2d 100 (1965); Sadler v. United States, 313 F.2d 106 (10th Cir. 1963); Jenkins v. Madigan, 211 F.2d 904 (7th Cir. 1954); Normandale v. Hiatt, 210 F.2d 941 (5th Cir. Nonetheless, the sentenc......
-
Shelton v. Taylor
...could be read to imply that the Board did have such power, see Robb v. Norton, 394 F.Supp. 856, 858-59 (D.Conn.1975); Sadler v. United States,313 F.2d 106 (10th Cir. 1963) (by implication). Thus, it is possible that the Board did consider granting Shelton retroactive credit at the November ......
-
Santa v. Tippy
...359, 361-62, 58 S.Ct. 872, 873, 82 L.Ed. 1399 (1938); D'Amato, 837 F.2d at 78-79; Heath, 788 F.2d at 87, 91-92; Sadler v. United States, 313 F.2d 106, 107 (10th Cir.1963). In that event, a statement by the sentencing judge, prior to parole revocation, that the new sentence is to run concurr......