United States v. Hough

• Decision Date: 16 December 1957
• Docket Number: Crim. No. 23621.
• Citation: 157 F. Supp. 771
• Parties: UNITED STATES of America, Plaintiff, v. Lyle Curtis HOUGH, Defendant.
• Court: U.S. District Court — Southern District of California

157 F. Supp. 771

UNITED STATES of America, Plaintiff, v. Lyle Curtis HOUGH, Defendant.

Crim. No. 23621.

United States District Court S. D. California, S. D.

December 16, 1957.

Laughlin E. Waters, U. S. Atty., Max F. Deutz, Chief Asst. U. S. Atty., Los Angeles, Cal.

John K. Duncan, Asst. U. S. Atty., San Diego, Cal., for the United States.

Lyle Curtis Hough, pro se.

WEINBERGER, District Judge.

Petitioner Lyle Curtis Hough has filed a motion under Section 2255 of Title 28 U.S.C.A., "for vacation or modification of sentence," imposed on March 26, 1954, by this Court.

On or about January 11, 1954, Hough was sentenced by the Superior Court of the County of San Diego, on a charge of armed robbery, to "five years to life," and was taken to the State Prison at Chino, California, to begin serving his sentence.

On January 27, 1954, Hough was indicted in this District and Division for violation of Title 18 U.S.C. § 2312, transportation of stolen car in interstate commerce.

On February 12, 1954, this Court ordered a Writ of Habeas Corpus ad Prosequendum to be issued commanding the authorities at Chino State Prison to present the defendant before the Federal Court on February 23, 1954, and at such other dates "as may be necessary in order to procure his presence for arraignment and plea and all other proceedings incident thereto * * * and at the termination of the proceedings against said defendant to return him to the custody of said State authorities." The writ issued as prayed for, and stated in part:

"The delivery of the body of said Lyle Curtis Hough to the Courtroom of said United States District Court as aforesaid, and the return by you of said defendant to your custody shall be deemed sufficient compliance with the writ."

Hough was then brought to this Court (it being noted on the minutes that he was in State custody) waived counsel and was arraigned and pleaded guilty; the date for his sentence was set for March 25, 1954.

On February 12, 1954, pursuant to order of this Court a "Writ of Habeas Corpus ad Prosequendum" in language identical with the previous writ was directed to the authorities of Chino State Prison, and Hough was brought into this Court for sentence. (It was noted on the minutes that Hough was in State Custody.) The following sentence was imposed:

"It is adjudged that the defendant is guilty as charged and convicted.

"It is adjudged that the defendant is hereby committed to the custody of the Attorney General or his authorized representative for imprisonment for a period of five years, to run concurrently with sentence defendant is now serving under State Court Sentence."

This judgment was returned unexecuted by the United States Marshal.

On March 26, 1954, the defendant was again brought before the Court, at which time, according to the transcript of the proceedings, the Court stated:

"The United States attorney has raised some question as to the validity of these sentences in making their service concurrent with the State sentence. After some reflection, it appears to me that these sentences were void, they may be vacated at this time and a proper sentence be now imposed."

(Another defendant with whom we are not here concerned had been sentenced along with Hough.)

The judgment here complained of reads in part as follows:

"Now, on the 26th day of March, 1954, came the attorney for the government and the defendant appeared in person and it appearing to the Court that the sentence pronounced on March 25, 1954, is void and should be vacated and proper sentence imposed,

"It is ordered and adjudged that judgment and sentence pronounced March 25, 1954, be and it is hereby vacated.

"It is adjudged that the defendant is hereby committed to the custody of the Attorney General or his authorized representative for imprisonment for a period of two years, service of said sentence to begin to run at conclusion of sentence under which defendant is currently incarcerated, to-wit, one imposed by a Superior Court of the State of California."

Hough's state sentence was later fixed at 6 years, and on April 18, 1957, after he had served 3 years and 29 days, he was released from the State prison.

The return on federal judgment of March 26, 1954, shows that on April 18, 1957, the United States Marshal assumed custody of Hough from detainer at the California State Prison at San Quentin and executed the judgment by delivering defendant on said date to the San Francisco County Jail, thence, on April 29, 1957, to the Federal Correctional Institution at Terminal Island, California.

On October 3, 1957, Hough filed the motion mentioned above. He contends that he began to serve his Federal sentence on the date it was first imposed, March 25, 1954, and that the second sentence of March 26, 1954, was void and beyond the jurisdiction of this Court in that after he had commenced to serve a valid Federal sentence, the Court increased his period of imprisonment.

When, on March, 25, 1954, the defendant received his first sentence in this Court, he was serving a State indeterminate sentence of 5 years to life imposed on January 14, 1954. When he was sentenced by this Court for the second time, on March 26, 1954, he was still serving his State sentence. The State did not determine the length of his sentence until December 3, 1956, when it was fixed at 6 years. He was released from State custody on April 18, 1957, after serving 3 years and 2 months and 4 days of the 6 years.

Thus, on April 18, 1957, when he was released from State custody, he would have had 2 years less 29 days of his first five-year federal sentence to serve, had the concurrent sentence been valid, instead of the two years imposed under the second sentence. Of course, had his State sentence been fixed at a minimum of five years, and his release occurred correspondingly earlier, he might have served a longer total time under the first five-year "concurrent" sentence than his total time under the State sentence and the second or two-year federal sentence.

The time actually served is not the criterion for determining whether the second sentence increased defendant's punishment. That question must be determined as of the date the sentence was imposed; if the first sentence was valid, the second sentence constituted an increase in punishment and was void. Rutledge v. United States, 5 Cir., 146 F.2d 199; Ekberg v. United States, 1 Cir., 167 F.2d 380.

The defendant has not shown by his petition that he has served the first sentence, the second sentence, or any sentence. If the first sentence was valid except as to the concurrency provision, the defendant must serve a five-year sentence under federal jurisdiction; if such sentence was void in its entirety, then the defendant must serve a two-year sentence in a federal institution; if the second sentence was void in its entirety, the defendant still has part of his first sentence to serve, and if the second sentence was void except as to the provision vacating the first sentence, the defendant stands as a person validly convicted without having been sentenced.

Under no theory is the defendant entitled to a decision herein which would result in his freedom from federal custody. "`Sentencing' is not a `game in which a wrong move by the judge means immunity for the prisoner.'" In re Bonner, 151 U.S. 242, 14 S.Ct. 323, 38 L.Ed. 149; Bozza v. United States, 330 U.S. 160, 168, 67 S.Ct. 645, 91 L.Ed. 818; McDowell v. Swope, 9 Cir., 1954, 183 F.2d 856, 859.

Section 2255 of Title 28 U.S.C.A. provides that a prisoner in custody under sentence of a court established by Act of Congress claiming the right to be released may move the court under said section to vacate, set aside or correct the sentence.

The section was enacted for the purpose of minimizing the difficulties encountered in habeas corpus proceedings affording the same rights in another and more convenient forum. United States v. Hayman, 342 U.S. 205, 72 S.Ct. 263, 96 L.Ed. 232. In McNally v. Hill, 293 U.S. 131, 55 S.Ct. 24, 79 L.Ed. 238, it was held that the only inquiry which may be made in a habeas corpus proceeding is the legality of the detention; that the only relief authorized is discharge or admission to bail if the detention be found unlawful, and that the writ may not be employed as a means of obtaining the judicial decision of any question which, even if determined in the prisoner's favor, will not result in his immediate release. See also Smith v. Hunter, 10 Cir., 201 F.2d 62; Oughton v. United States, 9 Cir., 215 F.2d 578, certiorari denied 352 U.S. 975, 77 S.Ct. 373, 1 L.Ed.2d 328; and Toliver v. United States, 9 Cir., 249 F.2d 804.

The defendant has not questioned the validity of his conviction nor has he claimed the right to be released from custody. There may be room to inquire whether he has properly titled his petition under Section 2255 of Title 28 U.S. C.A. Clark v. Memolo, 85 U.S.App.D.C. 65, 174 F.2d 978, 980.

Rule 35 of the Federal Rules of Criminal Procedure, Title 18 U.S.C.A. provides for a motion which presupposes a valid conviction and affords procedure for bringing an improper sentence into conformity with the law. United States v. Morgan, 346 U.S. 502, 506, 74 S.Ct. 247, 98 L.Ed. 248; Duggins v. United States, 6 Cir., 240 F.2d 479, 483; Cook v. United States, 1 Cir., 171 F.2d 567, 570.

Where the petitioner appears in propria persona, as was observed by Judge Barnes of the Court of Appeals of the 9th Circuit, "the court itself undertakes to assure the litigant that no meritorious case be lost because of a lack of legal skill. Briefs are scanned with unjaundiced eyes and technical compliance with the Rules of Court is not stringently enforced. The dominant theme is liberality." Hoffman v. United States, 9 Cir., 244 F.2d 378, 379.

It is obvious that defendant's petition merits consideration whatever its label, and if the second sentence was invalid it should be corrected regardless of whether such correction results in...