Vanover v. Cox, 12526.
| Citation | 136 F.2d 442 |
| Decision Date | 24 June 1943 |
| Docket Number | No. 12526.,12526. |
| Parties | VANOVER v. COX, Warden. |
| Court | U.S. Court of Appeals — Eighth Circuit |
John S. Farrington, of Springfield, Mo., for appellant.
Otto Schmid, Asst. U. S. Atty., of Kansas City, Mo. (Maurice M. Milligan, U. S. Atty., of Kansas City, Mo., on the brief), for appellee.
Before THOMAS and JOHNSEN, Circuit Judges, and VOGEL, District Judge.
This is an appeal from an order and judgment of the district court discharging a writ of habeas corpus previously issued by the court and remanding the petitioner to the custody of the appellee, O. H. Cox, Warden of the United States Medical Center for Federal Prisoners, Springfield, Missouri.
On October 9, 1937, while serving a four-year sentence for an offense against the state, appellant was removed by the United States Marshal from a prison road camp at Vinton, Virginia, to Pikeville in the Eastern District of Kentucky. He was there tried in the federal court for breaking into a post office in violation of 18 U.S.C.A. § 315. Upon conviction he was sentenced on October 13, 1937, to serve a term of five years in the United States Penitentiary at Atlanta, Georgia. Immediately after sentence was imposed upon him by the federal court in Kentucky he was returned to the prison road camp in Virginia to serve the remainder of the state sentence. After the state sentence expired he was again taken into custody by the United States Marshal on August 22, 1938, and committed on August 24, 1938, to the United States Penitentiary at Atlanta, Georgia. Thereafter the Attorney General directed his transfer to the Medical Center at Springfield, Missouri, where he now is.
The appellant contends that the five-year sentence imposed upon him by the federal court of Kentucky on October 13, 1937, ran concurrently with the sentence he was serving in Virginia; that his term expired on October 12, 1942; and that, therefore, his imprisonment since the latter date is illegal. The appellee contends that the five-year sentence did not begin to run until the appellant was received at the Atlanta penitentiary on August 24, 1938, and that, therefore, the term of his sentence does not end until August 24, 1943.
Title 18 U.S.C.A. § 709a provides:
The theory of appellant's petition in the district court is that the Virginia prison road camp to which he was returned by the United States Marshal after sentence was imposed upon him on October 13, 1937, by the federal court in Kentucky was a "place of detention" only, to which he was "committed to await transportation to" the Atlanta penitentiary, within the meaning of the statute; and that, therefore, his federal sentence commenced to run from the date of its imposition. The theory is contrary to the facts recited in the petition. There it is alleged that immediately after the federal sentence was imposed in Kentucky appellant "was returned to the prison road camp located at Vinton, Virginia, to serve out the remainder of his four (4) year sentence" * * * not that he was to be detained there to await transportation to Atlanta.
The theory and contention of appellant are based upon an unsound premise, that is, that he...
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