Sammons v. Rodgers, 85-1454
| Decision Date | 04 April 1986 |
| Docket Number | No. 85-1454,85-1454 |
| Citation | 785 F.2d 1343 |
| Parties | Michael Lee SAMMONS, Petitioner-Appellant, v. G.H. RODGERS, Warden, F.C.I. Seagoville, U.S. Bureau of Prison and U.S. Board of Parole, Respondents-Appellees. |
| Court | U.S. Court of Appeals — Fifth Circuit |
Michael Lee Sammons, pro se.
Marvin Collins, U.S. Atty., Jack Curtis Williamson, Asst. U.S. Atty., Dallas, Tex., for respondents-appellees.
Appeals from the United States District Court for the Northern District of Texas.
Before CLARK, Chief Judge, WILLIAMS and HIGGINBOTHAM, Circuit Judges.
ON PETITION FOR REHEARING AND SUGGESTION FOR REHEARING EN BANC
Appellant, Michael Lee Sammons, has petitioned for rehearing of the Order of this Court dated November 18, 1985, which dismissed his appeal in his petition for habeas corpus. The motion for rehearing is GRANTED, the Court Order of November 18, 1985, is withdrawn, and the following decision is substituted.
Michael Lee Sammons, a prisoner under a federal conviction, petitioned the District Court in the Northern District of Texas for habeas corpus. His claim is that the federal parole board is using prior convictions in the State of Tennessee to rank him at a lower eligibility for parole than he would otherwise rank. He claims that the Tennessee convictions are unconstitutional because they violate the constitutional prohibition against double jeopardy. The district court denied his contentions and he appealed. Appellant's application for leave to appeal in forma pauperis is GRANTED. The decision of the district court is set aside, and the case is returned to the district court for further proceedings in accordance with this opinion.
The district court denied habeas corpus on the ground that the Court in the Northern District of Texas had no jurisdiction to respond to an attack upon the Tennessee state conviction on double jeopardy grounds. The district court also found that the alleged impact of the Tennessee convictions on the federal parole board was speculative and uncertain because there was no showing that any effect had resulted from giving credence to the Tennessee convictions. We discuss each of these issues in turn.
On the matter of jurisdiction, appellant was convicted of kidnapping and burglary. Appellant raised his double jeopardy claims by way of appeal and by request for extraordinary relief in the Tennessee courts. Relief was denied. He was sentenced to a term of five to fifteen years and the sentence was suspended. Nothing in the record indicates that the suspended sentence in this case does not carry with it possible revocation of suspension or other adverse action. Because the suspended sentence apparently has not expired, the federal district court in Tennessee would have jurisdiction to evaluate the constitutionality of the convictions and sentence. Braden v. Thirtieth Judicial Circuit Court of Kentucky, 410 U.S. 484, 93 S.Ct. 1123, 35 L.Ed.2d 443 (1973). A suspended sentence which has not yet run does establish jurisdiction in the federal court of the state where the sentence continues to exist. 17 Wright, Miller, Cooper, FEDERAL PRACTICE & PROCEDURE, Sec. 4262, p. 612, citing United States ex rel Wojtycha v. Hopkins, 517 F.2d 420 (3rd Cir.1975). Appellant concedes that he could bring habeas corpus in the federal district court in Tennessee to test the validity of the Tennessee convictions.
Appellant's claim before us, however, is based upon the habeas corpus jurisdictional statutory provision, 28 U.S.C. Sec. 2241, by way of his assertion that the unconstitutional Tennessee convictions are being used by the federal parole authorities to lessen his chances for parole in connection with the federal...
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Poodry v. Tonawanda Band of Seneca Indians
...217-18 n. 3 (2d Cir.1970) (holding that probation, like parole, constitutes "custody" for habeas purposes); Sammons v. Rodgers, 785 F.2d 1343, 1345 (5th Cir.1986) (per curiam) (recognizing that jurisdictional prerequisites for habeas review are satisfied if defendant is subject to a suspend......
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...sentences may satisfy the custody requirement; see, e.g., McVeigh v. Smith, 872 F.2d 725, 727 (6th Cir.1989); Sammons v. Rodgers, 785 F.2d 1343, 1345 (5th Cir.1986) (per curiam); as may commitment to a mental institution, and incarceration as the result of a civil contempt order. See Duncan......
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U.S. v. Clark, 020800
...of Gideon, notwithstanding that those convictions had not been set aside by the state courts or by any federal court. In Sammons v. Rogers, 785 F.2d 1343 (5th Cir. 1986), we held a federal prisoner could, in a section 2241 habeas petition brought against the warden of the federal institutio......
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Reid v. Pautler
...sentences may satisfy the custody requirement; see, e.g., McVeigh v. Smith, 872 F.2d 725, 727 (6th Cir.1989); Sammons v. Rodgers, 785 F.2d 1343, 1345 (5th Cir.1986) (per curiam); as may commitment to a mental institution, and incarceration as the result of a civil contempt order. See Duncan......
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