Smith v. State of North Carolina, C-C-72-129.
| Decision Date | 08 August 1972 |
| Docket Number | No. C-C-72-129.,C-C-72-129. |
| Citation | 346 F. Supp. 361 |
| Court | U.S. District Court — Western District of North Carolina |
| Parties | John Edward SMITH, Petitioner, v. STATE OF NORTH CAROLINA, Respondent. |
No appearance for petitioner.
Richard League, Asst. Atty. Gen., N. C. Dept. of Justice, Raleigh, N. C., for respondent.
Once more the court is faced with a habeas corpus petition by a North Carolina prisoner asking the court to require the State to recognize his right under the 1969 case of Cole v. North Carolina, 419 F.2d 127 (4th Cir. 1969), and award him credit on his sentence for time spent in jail after his conviction and before his appeal was determined.
The facts are simple:
John Edward Smith was arrested July 20, 1965, and was confined in jail until tried and convicted on September 13, 1965, when he was given a 7 to 9-year prison term (the maximum is 10 years) for breaking and entering, and a 2-year concurrent term on another charge. His appeal was finally determined on April 15, 1966. He was kept in jail seven months pending appeal.
His scheduled release date is reported to be November 15, 1972.
His seven months of time in jail pending appeal have not been credited.
If they are credited, he is entitled to be released today.
Once more the Attorney General has answered and admitted that the case cannot be distinguished from Cole. This means petitioner is clearly entitled to credit for the time which he seeks.
Once more, so far as the record shows, the defendants have done nothing to allow petitioner the benefit of the right they thus concede is his.
Once more, as in previous cases in this court for example, Huffstetler v. Henry, Civil No. 2448 (W.D.N.C., December 12, 1969); Belk v. North Carolina, Civil No. 2486 (W.D.N.C., January 14, 1970); Newell v. Henry, Civil No. 2649 (W.D.N.C., April 13, 1970); Marsh v. North Carolina, Civil No. 2915 (W.D. N.C., August 20, 1971); Culp v. Blackledge, Civil No. 2958 (W.D.N.C., September 17, 1971); Withers v. Watkins, Civil No. 2731 (W.D.N.C., October 27, 1971); Hill v. Ross, Civil No. 2971 (W.D.N.C., January 14, 1972); Jarrett v. Blackledge, Civil No. C-C-72-3 (W.D.N.C., February 10, 1972); and Baugh v. Blackledge, Civil No. C-C-72-100 (W.D.N.C., July 28, 1972), a petitioner, as a result, has been denied prison advantages and has been threatened with or subjected to unlawful and wrongful imprisonment and punishment in excess of his lawful sentence.
Once more, a prisoner's rights have been ignored.
Once more, an unnecessary cost to the taxpayers has been incurred.
Once more, prison morale and prison rehabilitation have suffered an unnecessary blow.
Pursuit of state remedies would be futile (North Carolina v. Virgil, 276 N.C. 217, 172 S.E.2d 28 (1970)), and exhaustion will not be required.
Petitioner's claim of credit for pre-trial custody appears moot and will be dismissed for that reason, without prejudice to his right to raise the issue again if it has any further bearing on his rights.
It is therefore ordered, that the writ of habeas be granted, and:
1. That petitioner be given credit for all time spent in custody pending appeal.
2. The credit shall be computed as though petitioner had begun serving...
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Smith v. State of North Carolina, Civ. No. C-C-72-129.
...that had previously been imposed in April, 1967. The next thing that happened was this court's order of August 8, 1972, see Smith v. North Carolina, 346 F.Supp. 361, in which for at least the tenth time the Prison Department was directed to allow credit to a prisoner for time spent in priso......
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State of North Carolina v. Smith, 73-1277.
...with the previous six-month sentence for the earlier escape. The next event was the order of the District Court below on August 8, 1972, 346 F.Supp. 361, granting Smith credit for the seven months he had spent in prison pending the appeal of his original burglary conviction. This changed Sm......