Thomas v. Page, 8844.
| Decision Date | 28 October 1966 |
| Docket Number | No. 8844.,8844. |
| Citation | 368 F.2d 180 |
| Parties | Alton M. THOMAS, Appellant, v. Ray PAGE, Warden, Oklahoma State Penitentiary, Appellee. |
| Court | U.S. Court of Appeals — Tenth Circuit |
Richard D. Judd, Denver, Colo., for appellant.
No appearance for appellee.
Before PHILLIPS and SETH, Circuit Judges, and DOYLE, District Judge.
The appellant appeals from the order of the United States District Court for the Eastern District of Oklahoma dismissing his petition for a writ of habeas corpus. The District Court found that the appellant's petition failed to disclose violation of any of appellant's constitutional rights, and also failed to disclose that the appellant had exhausted all state remedies available to him.
The appellant urges that he has been deprived of equal protection of the laws and due process under the fourteenth amendment to the United States Constitution. The thrust of his argument is that he was improperly sentenced for attempted robbery. The facts disclosed by the record are as follows:
In early 1964 the appellant was tried and convicted in the District Court of Hughes County, Oklahoma, upon an information charging him with "attempted robbery with firearms, a second and subsequent offense." By including the words "a second and subsequent offense" with the charge of the substantive crime of attempted robbery with firearms the appellant's punishment, if convicted, would then be controlled by the Oklahoma habitual criminal statute, Okl. Stat.Ann., tit. 21, § 51 (Supp.1966). Moreover, the state trial court in the criminal case also instructed the jury that if it found the appellant was guilty "* * * of attempted burglary with a firearm, and also has been convicted of a felony, * * * you shall assess his punishment by imprisonment * * * for a period of time not less than five (5) years." Thomas v. State, 404 P.2d 71 (Okl.Crim.App.1965). The jury assessed the appellant's punishment at twelve years in prison.
By virtue of the information and the instruction to the jury, there seems little doubt that the jury was asked to consider both guilt and appropriate punishment in terms of a prior felony conviction. The appellant so states in his brief and the appellee has not seen fit to deny it. Title 21, § 801, Okl.Stat.Ann., sets the minimum prison sentence for robbery, or attempted robbery, with firearms at five years while the maximum punishment is death. Thus it is difficult to see how the habitual criminal statute could increase the punishment.
The appellant alleges that he was improperly sentenced to twelve years under the instruction applying § 51, paragraph 1, 21 Okl.Stat.Ann. (Supp.1966), which states:
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Clifton v. Beto
...469 (1953). Accordingly, this court holds that the McLennan County sentence was adequately descriptive and thus valid. Cf. Thomas v. Page, 368 F.2d 180 (10 CA 1966); Bevins v. Klinger, 365 F.2d 752 (9 CA Petitioner's second ground, i. e., that he is entitled to credit for the time spent out......
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Pringle v. Beto, 28609 Summary Calendar.
...only a question of state law. Conway v. Wilson, 9 Cir., 368 F.2d 485 (1966); Beto v. Sykes, 5 Cir., 360 F.2d 411 (1966); Thomas v. Page, 10 Cir., 368 F.2d 180 (1966). Further, it is apparent from the allegations of the application that the sentencing procedure followed was in perfect compli......
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