Tucker v. Peyton

• Decision Date: 24 February 1966
• Docket Number: No. 10246.,10246.
• Citation: 357 F.2d 115
• Parties: Thomas Ribble TUCKER, Jr., Appellant, v. C. C. PEYTON, Superintendent of the Virginia State Penitentiary, Appellee.
• Court: U.S. Court of Appeals — Fourth Circuit

357 F.2d 115 (1966)

Thomas Ribble TUCKER, Jr., Appellant, v. C. C. PEYTON, Superintendent of the Virginia State Penitentiary, Appellee.

No. 10246.

United States Court of Appeals Fourth Circuit.

Argued January 6, 1966.

Decided February 24, 1966.

Robert Gordon Smith, Richmond, Va. (Court-assigned counsel) Battle, Neal, Harris, Minor & Williams, Charlottesville, Va., on brief, for appellant.

Reno S. Harp, III, Asst. Atty. Gen. of Virginia (Robert Y. Button, Atty. Gen. of Virginia, and James Parker Jones, Asst. Atty. Gen. of Virginia, on brief), for appellee.

Before HAYNSWORTH, Chief Judge, J. SPENCER BELL, Circuit Judge, and ALGERNON L. BUTLER, District Judge.

HAYNSWORTH, Chief Judge:

In this habeas corpus proceeding, a Virginia state prisoner attacks sentences he has fully served without questioning the validity of the sentence under which, the Commonwealth contends, he is currently being held. His theory is that, if the earlier sentences were invalid, his commencement of service of subsequent sentences would be advanced, and that, if his subsequent custody is attributable to the valid sentences, he has fully served them. The District Court dismissed the petition without a hearing upon the ground that the prisoner had no standing to attack sentences he had completely served. We reverse for, if the prisoner can establish the factual predicate for his claim of invalidity of the earlier convictions, he is entitled to immediate release.

In Virginia's state courts Tucker was convicted in 1942 of grand larceny, in 1948 of grand larceny, and in 1956 of breaking and entering. Following the second conviction, he received an additional sentence as a recidivist, and a second recidivist conviction followed the third substantive offense conviction. In 1957, and again in 1960, Tucker escaped. Each time he was recaptured and convicted of escape. Each time an additional sentence was imposed upon him. Service of the first escape sentence was to commence at the expiration of the previously imposed recidivist sentence, while service of the second escape sentence was to commence upon expiration of the first escape sentence.

Tucker now attacks his 1942 conviction on the basis of claimed deprivation of counsel. Tucker had been discharged from the service of that sentence on August 16, 1942, but, if he can establish the invalidity of the 1942 conviction, the recidivist sentence imposed upon him as a third offender after his 1956 conviction must necessarily fall with it. If that be so, the only valid sentences under which Tucker could be held after 1956 are the one sentence of three years imposed upon him in 1956 for breaking and entering and the two subsequent escape sentences. The aggregate of those sentences would have expired and Tucker would have been long since discharged but for the third offender recidivist sentence which substantially postponed commencement of service of the escape sentences.

While Tucker does not question the validity of the escape sentences and his attack is directed entirely to sentences which concededly have been fully served, the sentences he attacks are unquestionably a present burden upon him and a very heavy one. It is only because they are treated as valid that Virginia attributes his present custody to the escape sentences. If Virginia recognized the invalidity of the sentences under attack and adjusted her records accordingly, the escape sentences would have been fully served and Tucker would be entitled to be released.

In Jones v. Cunningham, 371 U.S. 236, 83 S.Ct. 373, 9 L.Ed.2d 285, it was held that one on parole had standing to maintain a petition for a writ of habeas corpus attacking the judgment which was the basis of the requirement that he remain under supervision. In doing so, it declared the writ was "not now and never has been a static, narrow, formalistic remedy," 371 U.S. at 243, 83 S.Ct. at 377, but that it was adaptable to relieve anyone from a state's maintenance of wrongful restraints upon liberty. In keeping with the spirit of Jones v. Cunningham, we recently held in Martin v. Com. of Virginia, 4 Cir., 349 F.2d 781, that a prisoner could attack a sentence he had not yet begun to serve if, at the time, he would be eligible for parole if the questioned sentence were invalid. Petitions for the writ need not require adjudication of academic questions, but they should be readily entertained if directed to a conviction which currently substantially impinges upon the applicant's liberty. That is the plain teaching of Jones v. Cunningham and of our own decision in Martin.

Invocation of the general principle that habeas corpus may not be granted when the detention is presently under a valid sentence only begs the question. The question here is whether the state may sustain a present right to custody by attributing validity to a sentence which, by its motion to dismiss, it concedes was invalid. More specifically stated, the question is whether a state may justify postponement in service of a valid sentence on the basis of an earlier invalid one.

There is, of course, the historic principle that habeas corpus is not available unless the petitioner is entitled to be released immediately.¹ Among others, it has been held that a defendant in custody under a valid sentence may not question, in the habeas corpus jurisdiction, the validity of a subsequent sentence to be served consecutively.² It has also been held that a prisoner is not entitled to habeas corpus though nominally held under an invalid sentence if there is a valid sentence to be served consecutively, until he has remained in custody long enough to meet the service requirements of the valid...