Smartt v. Avery

Decision Date15 May 1969
Docket NumberNo. 18661.,18661.
Citation411 F.2d 408
PartiesRoy Lee SMARTT, Petitioner-Appellant, v. Harry S. AVERY, Commissioner of Corrections and C. Murray Henderson, Warden, Tennessee State Penitentiary, Respondents-Appellees.
CourtU.S. Court of Appeals — Sixth Circuit

Roy Lee Smartt, in pro. per.

James C. Dale, III, Sp. Counsel, State of Tennessee, Nashville, Tenn., for appellees on brief, George F. McCanless, Atty. Gen., State of Tennessee, Nashville, Tenn., of counsel.

Before McCREE and COMBS, Circuit Judges, and CECIL, Senior Circuit Judge.

PER CURIAM.

The district judge for the Middle District of Tennessee considered the petitions filed April 6, 1967 pro se by Roy Lee Smartt, petitioner-appellant, and the supplemental petition of his court appointed lawyer as stating a claim under the civil rights statutes. Section 1343, Title 28, and Section 1983, Title 42, U. S.C. The district judge, upon hearing, denied the claim and the appellant appeals.

The appellant while on parole from a five year state court sentence was convicted in the Criminal Court of Shelby County, Tennessee, for robbery and accessory before the fact of robbery. He received 15 and 5 year sentences respectively, to be served concurrently. Upon conviction of a felony while on parole he became subject to automatic parole revocation under Section 40-3620 Tennessee Code Annotated. The new sentences were to begin at the expiration of the five year sentence upon which he had been paroled. The pertinent part of Section 40-3620 as in effect at the time of the revocation of parole on the first 5 year sentence is as follows:

"If any prisoner be convicted in this state of a felony committed while on parole from a state prison, he shall, in addition to the sentence which may be imposed for such felony, and before beginning to serve such sentence, be compelled to serve in a state prison the portion remaining of the maximum term of the sentence on which he was released on parole from the time of such release on parole to the expiration of such maximum."

The appellant's principal complaint is that when his parole was revoked the remainder of his sentence was made to run from the date of the release on parole rather than the date of the delinquency. This resulted in about fourteen months extension of time before he would be eligible for parole on the new sentences.

After the Supreme Court announced its decision in Mempa v. Rhay, 389 U.S. 128, 88 S.Ct. 254, 19 L.Ed.2d 336, the court appointed lawyer filed the supplemental petition above mentioned, claiming that the appellant's constitutional rights were violated because he did not have a lawyer at the parole hearing. The inference is that had the appellant had a lawyer to represent him before the parole board his rights would have been protected from the alleged injustice of which h...

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27 cases
  • Miller v. Rockefeller, 70 Civ. 2647.
    • United States
    • U.S. District Court — Southern District of New York
    • 8 Marzo 1971
    ...unless it appears that the applicant has "exhausted the remedies available in the courts of the State." 28 U.S.C. § 2254; Smartt v. Avery, 411 F.2d 408 (6th Cir. 1969); Greene v. State of New York, 281 F. Supp. 579 (S.D.N.Y.1967); Lombardi v. Peace, 259 F.Supp. 222 (S.D.N.Y.1966). Yet, if t......
  • Sostre v. McGinnis
    • United States
    • U.S. Court of Appeals — Second Circuit
    • 24 Febrero 1971
    ...sham procedure to avoid the exhaustion requirement of the federal habeas corpus statute, 28 U.S.C. § 2254(b), (c). Cf. Smartt v. Avery, 411 F.2d 408 (6th Cir. 1967); Kalec v. Adamowski, 406 F.2d 536 (7th Cir. 1969); Peinado v. Adult Auth., 405 F.2d 1185, 1186 (9th Cir.), cert. denied, 395 U......
  • Edwards v. Schmidt
    • United States
    • U.S. District Court — Western District of Wisconsin
    • 5 Enero 1971
    ...so as to circumvent the requirement of those statutes that state remedies be exhausted before federal relief is sought. Smartt v. Avery, 411 F.2d 408 (6th Cir. 1969); Johnson v. Walker, 317 F.2d 418 (5th Cir., 1963). The instant case, however, does not present a habeas corpus situation sinc......
  • Fisher v. Ventura Cnty. Sheriffs Narcotics Agency
    • United States
    • U.S. District Court — Central District of California
    • 18 Junio 2014
    ...statutory requirements apply no matter what statutory label the prisoner has given the case'") (citation omitted); Smarted v. Avery, 411 F.2d 408, 409 (6th Cir. 1969) (28 U.S.C. § 1343 "cannot be used by a state prisoner to circumvent the" exhaustion requirement of 28 U.S.C. § 2254). 2. Acc......
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