Smith v. Settle

• Decision Date: 20 September 1962
• Docket Number: No. 13708-4.,13708-4.
• Citation: 211 F. Supp. 514
• Parties: Joseph Orby SMITH, Jr., Petitioner, v. Dr. R. O. SETTLE, Warden, Medical Center for Federal Prisoners, Springfield, Missouri, Respondent.
• Court: U.S. District Court — Western District of Missouri

211 F. Supp. 514

Joseph Orby SMITH, Jr., Petitioner, v. Dr. R. O. SETTLE, Warden, Medical Center for Federal Prisoners, Springfield, Missouri, Respondent.

No. 13708-4.

United States District Court W. D. Missouri, W. D.

September 20, 1962.

Joseph Orby Smith, Jr., pro se.

F. Russell Millin, U. S. Atty., by John Harry Wiggins and John L. Kapnistos, Asst. U. S. Attys., Kansas City, Mo., for respondent.

BECKER, District Judge.

This is a petition for writ of habeas corpus to secure to petitioner trial or dismissal of an indictment pending in the Southern District of California. On April 4, 1962, this Court ordered respondent to show cause why the writ should not issue. An answer and response and a traverse were duly filed. Service upon petitioner of copies of the documents attached to the answer was ordered at the request of petitioner.

In 1948 petitioner was convicted in the United States District Court for the Southern District of California for the crime of robbery of a bank with the use of a dangerous weapon and sentenced to a term of twenty-five years. He was returned to the state penitentiary, San Quentin, California, to complete a state sentence from which he had been paroled at the time of the robbery. He was transferred to the United States penitentiary at Alcatraz in 1952. In October of 1956 he was certified psychotic and sent to the United States Medical Center at Springfield, Missouri. On August 16, 1961, an indictment was returned in the Southern District of California charging petitioner with knowingly causing to be delivered by the Post Office Department a threatening letter. At the time of the alleged offense, petitioner was in the Southern District of California for a hearing on a petition for a writ of habeas corpus attacking the validity of sentence for bank robbery.

Petitioner was arraigned September 5, 1961, on the indictment of August 16, 1961. On September 25, 1961, the United States District Court for the Southern District of California heard arguments on a motion to dismiss the indictment. On October 2, 1961, the motion was denied. Dr. Karl O. Von Hagen, M.D., was then appointed to examine the petitioner. On October 23, 1961, the court found the petitioner to be insane and unable to assist in his own defense. On October 30, 1961, the court ordered petitioner returned to the Medical Center at Springfield, Missouri.

Petitioner's present claim is for a speedy trial on the indictment pending in the Southern District of California, and, impliedly, for dismissal in case of failure to grant a speedy trial.

It is true that a convict has certain constitutional rights to a speedy trial when, as in this case, the same sovereign which preferred the new charge is detaining the prisoner under a prior judgment of conviction. Fouts v. United States (C.A.6), 253 F.2d 215; United States ex rel. Coleman v. Cox (C.A.5), 47 F.2d 988; McCarty v. United States District Court (C.A.8), 19 F.2d 462; United States ex rel. Whitaker v. Hennings (C.A.9), 15 F.2d 760; Frankel v. Woodrough (C.A.8), 7 F.2d 796; Annotation, 118 A.L.R. 1037. The remedy for a failure to accord a speedy trial is dismissal of the charge. United States v. Chase (N.D.Ill.), 135 F.Supp. 230; United States v. Alagia (D.Del.), 17 F.R.D. 15. See Federal Rules of Criminal Procedure, rule 48(b).

However, without passing on whether there is any merit to petitioner's claim, it appears that at the present time this Court has no practical power to grant relief to the petitioner. The release of the prisoner cannot be ordered since he is presently confined under the lawful judgment of conviction entered by the United States District Court for the Southern District of California. Neither dismissal of the indictment nor trial of the case can be ordered since the power and jurisdiction to make such orders is possessed exclusively by the trial court in ordinary circumstances. All this Court could do would be to consider...