Shelton v. United States, 15990.
| Citation | 234 F.2d 132 |
| Decision Date | 05 June 1956 |
| Docket Number | No. 15990.,15990. |
| Parties | Jay Paul SHELTON, Appellant, v. UNITED STATES of America and F. T. Wilkinson, Warden, United States Penitentiary, Atlanta, Georgia, Appellees. |
| Court | United States Courts of Appeals. United States Court of Appeals (5th Circuit) |
J. Paul Shelton, in pro. per.
James W. Dorsey, U. S. Atty., Charles D. Read, Jr., Asst. U. S. Atty., Atlanta, Ga., for appellee.
Before HUTCHESON, Chief Judge, and RIVES and JONES, Circuit Judges.
In the proceedings from which this appeal comes, the appellant, by petition for declaratory judgment and for habeas corpus, sought an order requiring the warden to give him credit on his four year sentence, and thus to advance his release time. The credit sought was for approximately nine months spent in jail, from October 22, 1952, when, under Rule 38(a, 2)1 Fed.Rules Crim.Proc., he gave notice of appeal and filed an election2 not to serve sentence pending appeal, to July 20, 1953, when, having been removed on July 7th to Atlanta and his sentence having been affirmed in this court, he filed in the sentencing court an election to serve sentence.
His claims were: (1) that to be effective the election not to serve must have been, but was not, filed in accordance with the rule, in that it was not made when, but nearly ninety days after, the sentence commenced to run; (2) that the election was conditioned, for the reasons given by him, on his being allowed to remain in New Orleans; and (3) that that condition was breached by taking him to Atlanta against his will and over his protest two or three days before his judgment on appeal was affirmed.
The district judge rejected these claims, and denied his prayers for relief, and he has appealed, urging vigorously upon us that the district judge erred.
We cannot agree. It is quite plain, we think, under the undisputed facts, that his contentions are wholly unmeritorious. After his motion for new trial was denied, he gave notice of appeal and then elected not to serve his sentence. Having thus voluntarily elected not to serve, service of his sentence automatically ceased, Norris v. U. S., 5 Cir., 190 F.2d 186; U. S. v. Walker, D.C., 17 F.R.D. 5; and he may not now complain of the results of his voluntary action. Holdsworth v. United States, 1 Cir., 179 F.2d 933.
His claim that, by being carried to Atlanta three days before the judgment in his case was affirmed, the condition of his election was violated to his injury and the election nullified ab initio, is on its...
To continue reading
Request your trial
-
Kansas City S. Ry. Co. v. Wiggins
... ... No. 15920 ... United States Court of Appeals Fifth Circuit ... May 31, 1956 ... Rehearing ... ...
-
Sobell v. Attorney General of US, Dept. of Justice, 17349.
...consider that it constituted an adjudication of the issues here raised. 2 See 28 U.S.C.A. §§ 2241, 2243 and compare Shelton v. United States, 234 F.2d 132 (5th Cir. 1956). 3 We think Rule 35 of the F.R.Cr.P. is by its terms not here applicable. 1 See, e.g., United States v. Hayman, 342 U.S.......
-
Leyvas v. United States, 20790.
...for time spent in custody pending the appeal, have been uniformly denied. See Allocco v. Heritage, 5 Cir., 310 F.2d 719; Shelton v. United States, 5 Cir., 234 F.2d 132; cf. Comulada v. J. T. Willingham, 10 Cir., 351 F.2d In our case, however, Leyvas did not seek an order requiring the warde......
-
Shelton v. United States
...he felt that Tysinger had welched on his agreement on a certain nine months jail time (See the opinion of this court in Shelton v. United States, 234 F.2d 132), filed a motion to vacate sentence pursuant to 28 U.S.C. § 2255. He further stated (R. 45) "I still confess I feel somewhat badly a......
-
18 APPENDIX U.S.C. § 38 Staying a Sentence Or a Disability
...such person is received at the penitentiary, reformatory, or jail for service of said sentence." See, e.g., Shelton v. United States, 234 F.2d 132 (5th Cir. 1956).The amendment eliminates the procedure for election not to commence service of sentence. In lieu thereof it is provided that the......