Todd v. Wilson, Civ. A. No. 18037-3.
| Decision Date | 04 February 1970 |
| Docket Number | Civ. A. No. 18037-3. |
| Citation | 310 F. Supp. 1025 |
| Parties | Charles R. TODD, Petitioner, v. Francis M. WILSON, United States Marshal, Western District of Missouri, Respondent. |
| Court | U.S. District Court — Western District of Missouri |
Charles R. Todd, pro se.
Frederick O. Griffin, Jr., Asst. U. S. Atty., Kansas City, Mo., for respondent.
ORDER GRANTING PETITIONER LEAVE TO PROCEED IN FORMA PAUPERIS AND DENYING PETITION FOR HABEAS CORPUS
Petitioner, a federal convict who is currently serving a state sentence in the Missouri State Penitentiary, petitions this Court for a writ of habeas corpus prohibiting the respondent from taking custody of petitioner at the termination of his current state sentence on February 2, 1970. Petitioner also requests leave to proceed in forma pauperis. Leave to proceed in forma pauperis will be granted.
Petitioner states that he plead guilty to the offense of forging an endorsement and passing a United States Treasury Department check in violation of Section 495 of Title 18, United States Code; that he was sentenced on that conviction by the Honorable Floyd R. Gibson in the Central Division of this Court on April 3, 1963, to a term of two years' imprisonment; that "at the time of such sentencing petitioner was serving a term of fifteen (15) years in the Missouri State Prison"; that "the terms of the federal sentence * * * provided that petitioner should begin serving such federal term `upon the expiration of any sentence or sentences of imprisonment now being served by the defendant'"; that "petitioner was eventually paroled on the state sentence, returned as a parole violator and given an additional term of five (5) years"; that "petitioner has been informed that a detainer in favor of the U.S. Marshall (sic) has been lodged against him and that upon termination of his five (5) year term he will be turned over to the custody of such marshall" (sic); "that his present term of five (5) years will expire on the 2nd day of February, 1970"; that "the present sentence which petitioner is now serving in the state of Missouri is not related any way, shape or form with the two (2) year federal term imposed in 1963"; and that "the only sentence `now being served' by petitioner at time of imposition of the federal sentence was the fifteen (15) year term which petitioner was subsequently paroled on and that such sentence expired several years ago."
Under the reasoning of Peyton v. Rowe, 391 U.S. 54, 88 S.Ct. 1549, 20 L.Ed.2d 426, petitioner is "in custody" under the federal sentence so that he has standing to challenge his confinement thereunder. Petitioner therefore has the same right to challenge the continued "custody" of him by respondent in habeas corpus just as a convict who is in custody in the ordinary sense has the right to assert his right to immediate release on the grounds that his sentence has terminated. In this case, petitioner's sentence is controlled by federal statute, Section 3568 of Title 18, United States Code, which, as pertinent, provides that the "sentence of imprisonment of any person convicted of an offense shall commence to run from the date on which such person is received at the penitentiary, reformatory, or jail for service of such sentence."1 Petitioner states that he has never been in federal custody, except momentarily to be arraigned and sentenced; and that the time spent in state custody has no connection with the federal offense on which he was sentenced in this Court or the acts constituting that offense. It is well settled that a sentence pronounced by a federal court to commence after a state sentence being served at the time of the pronouncement of the federal sentence, does not commence until the sentenced prisoner is received at the "penitentiary, reformatory, or jail for service of such sentence" or otherwise comes into federal custody to serve the sentence. United States v. Kanton (C.A.7) 362 F.2d 178, cert....
To continue reading
Request your trial
-
Farley v. Nelson, Civ. No. B-78-284.
...944 (E.D.N.C.1973) with Piper v. Estelle, 485 F.2d 245 (5 Cir. 1973); Bailey v. Ciccone, 420 F.Supp. 344 (W.D.Mo.1976); Todd v. Wilson, 310 F.Supp. 1025 (W.D.Mo.1970); and United States v. Vann, 207 F.Supp. 108 (E.D.N.Y.1962). 4. The facts in this case fail to establish that petitioner is e......
-
Adams v. State, WD
...custody" for purposes of testing either sentence by federal habeas corpus under 28 U.S.C. § 2241. Peyton was followed in Todd v. Wilson, 310 F.Supp. 1025 (W.D.Mo.1970), where the petitioner was deemed to have standing to challenge a federal sentence which was to be served consecutively with......