United States v. Young, 47663.
| Decision Date | 23 September 1950 |
| Docket Number | No. 47663.,47663. |
| Citation | 93 F. Supp. 76 |
| Parties | UNITED STATES v. YOUNG. |
| Court | U.S. District Court — Western District of Washington |
J. Charles Dennis, United States Attorney, Seattle, Wash., for plaintiff.
Clarence A. Lirhus, Seattle, Wash., for defendant.
This is a proceeding under 28 U.S.C.A., § 2255.
On August 29, 1948 an indictment in two counts was filed against the defendant, charging him in Count I with forging the name of the payee to a U. S. Government check on or about June 17, 1947, and in Count II with uttering and passing the same check as true, on or about the same date. On September 10th, the defendant, then being represented by counsel, pleaded guilty to both counts. The matter was referred to the probation department and after report thereon, the defendant on November 12, 1948 was sentenced by the Honorable Lloyd L. Black, as judge of this Court to four and one-half years and to pay a fine in the sum of $1,000 on Count I of the indictment, and to four and one-half years and to pay a fine in the sum of $1,000 on Count II of the indictment, with the specific provision that "the imprisonment on Count II shall run consecutive to the sentence of imprisonment on Count I herein, to make an aggregate of Nine (9) years."
The petition filed in handwritten duplicate, requested the Court to appoint "competent and experienced counsel to aid and represent the defendant." No showing of poverty or inability to employ counsel of defendant's own choosing was made or attempted to be made. The Court nevertheless appointed Clarence A. Lirhus, Esq., a competent and experienced member of this bar to represent defendant, transmitted to him the copy of the petition, made available to him the files and records of the case, and after notice to the United States Attorney, set the matter down for hearing in open court. There appeared to be no need for the presence of the defendant, and his presence was not requested, so he was not present except by appointed counsel.
The petition does not attack the sentence on Count I. It attacks Count II only. While the petition is long, the substance of the attack on Count II is that it charges the same offense as contained in Count I, and that thus the defendant is put in double jeopardy for the same offense.
Before considering the merits of petitioner's claim it is first necessary to determine whether or not the petition is timely filed, i. e., whether or not the petitioner who has not yet begun to serve the sentence which he is attacking, can file a motion at this time under the provisions of 28 U.S.C.A. § 2255.
The text of the pertinent provisions of that section are as follows (italics supplied):
At first blush, it would appear that the words "at any time" occurring in the second paragraph of the section would permit the filing of such petition prior to the commencement of the service of the sentence which is under attack. But those words must be read in connection with the first paragraph of the section, and with particular reference to the use of the words "in custody under sentence" and the words "the sentence," and "such sentence." When this is done it becomes apparent that the person must be in custody under the sentence which is being attacked. That being so, the petition is premature and must be disallowed on that ground alone. Moreover, in this connection, it must be assumed that Congress intended the section to be read in the light of the practicalities of the administration of the law. Surely Congress did not intend to burden the Courts with the grant of a new trial even on limited issues to every person in the federal prison system who has had imposed upon him consecutive sentences. To...
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...is premature. Crow v. United States, 9 Cir., 186 F.2d 704; United States v. Greco, D.C.M.D. Pa., 141 F.Supp. 829; United States v. Young, D.C., 93 F.Supp. 76, 78, appeal dismissed 9 Cir., 190 F.2d 558; See United States v. Walker, D.C., 107 F. Supp. 218. If a prisoner has already served the......
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...v. State of Arkansas, 8 Cir., 1950, 179 F.2d 709, certiorari denied 339 U.S. 952, 70 S.Ct. 841, 94 L.Ed. 1365; United States v. Young, D.C.W.D. Wash.1950, 93 F.Supp. 76. The defendants, in the present case, are not in custody. They are out on bond. Hence Title 28 U.S.C. § 2255 is not Defend......
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...Affirmed. 1 1948 Revised Criminal Code, 18 U.S.C.A. §§ 2311-2313. 2 Barrett v. Hunter, 10 Cir., 180 F.2d 510, 513. 3 United States v. Young, D.C., 93 F. Supp. 76. 4 McNealy v. Johnston, 9 Cir., 100 F.2d 280. 5 McNally v. Hill, 293 U.S. 131, 55 S.Ct. 24, 79 L.Ed. 238; Weber v. Squier, 9 Cir.......
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