Scarponi v. United States, 7167.

• Decision Date: 31 January 1963
• Docket Number: No. 7167.,7167.
• Citation: 313 F.2d 950
• Parties: Danny R. SCARPONI, Appellant, v. UNITED STATES of America, Appellee.
• Court: U.S. Court of Appeals — Tenth Circuit

313 F.2d 950 (1963)

Danny R. SCARPONI, Appellant, v. UNITED STATES of America, Appellee.

No. 7167.

United States Court of Appeals Tenth Circuit.

January 31, 1963.

John D. Comer, Denver, Colo., for appellant.

Benjamin E. Franklin, Asst. U. S. Atty. (Newell A. George, U. S. Atty., with him on brief), for appellee.

Before MURRAH, Chief Judge, and PICKETT and LEWIS, Circuit Judges.

MURRAH, Chief Judge.

This is an appeal from an Order of the District Court summarily denying petitioner's motion under 28 U.S.C.A. § 2255, for the correction of a sentence, based on his contention that it should be construed, by its terms, to run concurrently with the sentence he is now serving. We granted leave to appeal in forma pauperis, ordered the record certified here, and appointed counsel who filed brief and argued the case on behalf of the petitioner. The case is submitted to us on these facts: Petitioner was sentenced by the United States District Court for the Eastern District of Virginia to a three-year term on Count One, and a one-year term on Count Two of an indictment, the one-year term to run consecutively to the three-year term. On the same day, the same Court sentenced the petitioner to a term of three years on another indictment, the sentence to run consecutively to the sentences imposed under the prior indictment. Apparently while in custody, serving the aggregate four-year sentence under the first indictment, petitioner escaped. On his plea of guilty to the charge of escaping, the Kansas District Court pronounced a sentence of two years and six months, "this sentence to run consecutively with the sentence now being served by you." Acting under Rule 35, F.R.Crim.P., the Court subsequently reduced the sentence to impose a maximum term of two years, "such sentence to run consecutively to the sentence which he is now serving."

Thereafter, and apparently while serving his second consecutive Virginia sentence, petitioner addressed a letter to the Kansas Court in which he called attention to the recorded wording of the Court's oral pronouncement, suggesting that the use of the words, "to run consecutively with the sentence now being served" were ambiguous, and went on to contend that correctly construed, the judgment of the Court imposed, "a sentence of two years, to run concurrently with my second sentence of three years, and not consecutively at the end of my accumulated sentence of seven years." The Court seemed to think the petitioner's sole contention was that the use of the phrase, "consecutively with" instead of "consecutively to" in the oral pronouncement resulted in ambiguity, which should be resolved in favor of concurrent sentences. Finding no ambiguity in the use of the words, "consecutively with," the Court dismissed the complaint as being without merit. We readily agree with the Kansas Court that the use of the word "with" to impose a sequence of sentences does not render the judgment imposing such sentences in any manner ambiguous. See: Martin v. United States, 10 Cir., 285 F.2d 150. Moreover, the written Order, reducing the sentence to a term of two years, "consecutively to the sentence which he is now serving," eliminated any possible doubt or ambiguity arising from the use of the word "with." But, this does not answer petitioner's contention to the effect that when the instant two-year sentence was imposed, he was serving only the first of the consecutive Virginia sentences, and since the two-year sentence was to run consecutively to the sentence "now being served by you," it commenced to run at the expiration thereof, and is, therefore, concurrent with the second consecutive Virginia sentence.

Although no notice was taken of the availability of 28 U.S.C.A. § 2255 in the District Court or in the briefs and argument here, we must take note of the matter because of its procedural and jurisdictional significance in the resolution of post-conviction problems.

So much has been said of the availability of § 2255, it seems unnecessary to reiterate that, being "exactly commensurate with that which had previously been available by habeas corpus," it is unavailable to attack a sentence which the petitioner is not then serving, and which could not result in his release. Hill v. United States, 368 U.S. 424, 427, 82 S.Ct. 468, 7 L.Ed.2d 417; and see: Heflin v. United States, 358 U.S. 415, 79 S.Ct. 451, 3 L.Ed.2d 407; McNally v. Hill, 293 U.S. 131, 55 S.Ct. 24, 79 L.Ed. 238; and Igo v. United States, 10 Cir., 303 F.2d 317. Inasmuch as petitioner does not contend that the sentence he attacks is void or that he is entitled to immediate release from it, § 2255 is unavailable to test his contentions concerning the sequence of its service.

The petitioner called his hand-written papers a motion under § 2255, and the District Court took cognizance of them as such. Rule 35, F.R.Crim.P. is invoked as an additional remedy for the first time in the brief on petitioner's behalf, but we will, of course, determine his right to relief by whatever remedy may be suitable to his cause. See: Igo v. United States, supra; Hill v. United States, supra, 368 U.S. 430, 82 S.Ct. 472; and Heflin v. United States, supra. While Rule 35 and § 2255 undoubtedly provide overlapping remedies, in that both authorize the correction of an illegal sentence, Rule 35 authorizes the correction of an "illegal sentence at any time," whether the correction results in the release of the prisoner, Duggins v. United States, 6 Cir., 240 F.2d 479, cited in Hill v. United States, supra, or even though the petitioner has served his sentense. Roddy v. United States, 10 Cir., 296 F.2d 9. The Rule is available to correct errors of law appearing on the face of the judgment,¹ and the ancient writ of error coram nobis is available to correct fundamental errors of fact. See: United States v. Morgan, 346 U.S. 502, 74 S.Ct. 247, 98 L.Ed. 248; Igo v. United States, supra; and United States v. Mayer, 235 U.S. 55, 69, 35 S.Ct. 16, 59 L.Ed. 129.

While it seems to be authoritatively agreed that Rule 35 provides a remedy for the correction of illegal sentences under the circumstances in which § 2255 is unavailable, there...