Smith v. Hiatt, 132.
| Decision Date | 01 February 1943 |
| Docket Number | No. 132.,132. |
| Citation | 48 F. Supp. 747 |
| Parties | SMITH v. HIATT, Warden, U. S. Penitentiary. |
| Court | U.S. District Court — Western District of Pennsylvania |
Robert McK. Glass, of Sunbury, Pa., for petitioner.
Herman F. Reich, of Sunbury, Pa., for respondent.
The petitioner, Leon Richard Smith, was sentenced on May 7, 1937, to serve a total period of seven and one-half years in a penitentiary and to pay a fine of $2,000 on each of three counts with a condition that the fine on two of the counts be remitted provided that the fine on count 1 be paid, and with a further provision that the petitioner stand committed until the fine imposed on count one is paid, or until he is otherwise discharged by due course of law. On May 12, 1937 the petitioner filed a notice of appeal. On June 28, 1937, the petitioner was transported from the Federal House of Detention in New York City to the United States Penitentiary at Lewisburg, Pennsylvania. On June 29, 1937, the petitioner obtained an order from the Circuit Court of Appeals for the Second Circuit directing the United States Marshal to transfer the petitioner from the penitentiary to the Federal House of Detention, and this order was executed on July 1, 1937. On December 20, 1937, the Circuit Court of Appeals for the Second Circuit (United States v. Smith, 93 F.2d 1019), affirmed the judgment of the District Court and, on March 14, 1938, the petitioner's application for a writ of certiorari was denied by the Supreme Court of the United States. 303 U.S. 652, 58 S.Ct. 750, 82 L.Ed. 1112. On May 21, 1938, the order of the Supreme Court of the United States and the mandate of the Circuit Court of Appeals for the Second Circuit were made the judgment and order of the District Court and, on May 24, 1938, the petitioner was transported to the United States Penitentiary at Lewisburg, Pennsylvania, and is now confined there pursuant to that judgment.
November 10, 1942, the petitioner filed his petition for a writ of habeas corpus. A response was filed thereto on November 30, 1942, and hearing was had pursuant to the petition and response. At the hearing no evidence was offered by either party, and the case was submitted upon the petition and response and the exhibits which were a part thereof.
It is admitted that the petitioner has not paid the fine imposed on count 1 of the indictment, and has not taken the required oath before a United States Commissioner. Consequently, the petitioner is not at this time entitled to release. Hogan v. Hill, D.C., 9 F.Supp. 333. However, this objection is clearly technical and is not pressed by the respondent except as a matter going to the final order in this case. In view of the fact that the petitioner will undoubtedly be given an opportunity to take the required oath if he is otherwise entitled to be released, I shall consider the case on the merits of the petition.
It is admitted that if the petitioner is given credit for all the time he has been imprisoned since the imposition of sentence, and with credit for good time, he is now entitled to be released except for the matter of the committed fine. The imprisonment of the petitioner may be considered in four parts: the time from May 7, 1937, the date of sentence, to June 29, 1937; the date of the order of the Circuit Court of Appeals; the time from June 29, 1937 to March 14, 1938, the date of the denial of certiorari; the time from March 14, 1938 to May 21, 1938, the date of the order of the District Court entered in accordance with the order of the Supreme Court of the United States and the mandate of the Circuit Court of Appeals; and the time from May 21, 1938 to November 10, 1942, the date of the filing of the petition here under consideration. As, in my opinion, the petitioner is not entitled to credit for the period from June 29, 1937 to March 14, 1938, this discussion will be confined to that period alone, as the petitioner is not entitled to be released unless he receives credit for such period.
The order of the Circuit Court of Appeals entered June 29, 1937 recites that it was made pursuant to an application of the petitioner for an order directing the marshal to transfer him from the penitentiary to the Federal House of Detention in New York City "pending the determination of the appeal taken herein by defendant-appellant from the judgment of conviction entered against him on the 7th day of May, 1937 * * *", and the order directed the United States Marshal to transfer the petitioner from the penitentiary to the Federal House of Detention in New York City "until the determination by this Court of the appeal heretofore taken by him from the judgment of conviction entered against him on the 7th day of May, 1937, or until the election prior thereto of the defendant-ap...
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...ex rel. Steinberg v. Cummings, D.C., 14 F.Supp. 647, affirmed 3 Cir., 85 F.2d 1022; Von Baden v. Hiatt, D.C., 47 F.Supp. 683; Smith v. Hiatt, D.C., 48 F.Supp. 747. Moreover, we are also of the opinion that the adjudication in that case is binding upon the appellant in the instant proceeding......
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Norris v. United States, 13618.
...v. Hudspeth, 10 Cir., 99 F.2d 274; U. S. ex rel Steinberg v. Cummings, D.C., 14 F.Supp. 647, affirmed 3 Cir., 85 F.2d 1022; Smith v. Hiatt, D.C., 48 F.Supp. 747; all decided under former Rule V. Cf. Dimmick v. Tompkins, 194 U.S. 540, 24 S.Ct. 780, 48 L.Ed. In no event could appellant claim ......
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