Wilson v. Bell, 9422.

• Decision Date: 22 June 1943
• Docket Number: No. 9422.,9422.
• Citation: 137 F.2d 716
• Parties: WILSON v. BELL, Warden.
• Court: U.S. Court of Appeals — Sixth Circuit

137 F.2d 716 (1943)

WILSON v. BELL, Warden.

No. 9422.

Circuit Court of Appeals, Sixth Circuit.

June 22, 1943.

Hobart F. Atkins, of Knoxville, Tenn., for appellant.

E. Ray Hauk, of Knoxville, Tenn. (James B. Frazier, Jr., E. Ray Hauk, and James M. Meek, all of Knoxville, Tenn., on the brief), for appellee.

Before HICKS, HAMILTON, and MARTIN, Circuit Judges.

MARTIN, Circuit Judge.

The record in this habeas corpus proceeding reveals an unusually complicated case history.

On May 23, 1939, two indictments against appellant, Herbert Wilson, were returned in the Eastern District of Tennessee; one charging him with violation of the Mann Act, 18 U.S.C.A. § 397 et seq., and the other, in three counts, with bank robbery and conspiracy to rob a bank, against the peace and dignity of the United States.

Appellant pleaded guilty to both indictments and, in his presence, was sentenced by judicial oral pronouncement to penal servitude of 7½ years on each indictment, the sentences to run consecutively. Neither judgments nor commitments were entered on these oral sentences; but, on a later date, June 5, 1939, in the absence of appellant who was at that time incarcerated, the District Court entered judgments sentencing him to ten years imprisonment in the bank robbery case and five years in the Mann Act case, the latter term of imprisonment to commence at the expiration of the former. The original oral sentences were changed by these judgments, when the District Judge came to a realization that the sentence in the Mann Act case exceeded the statutory limit by 2½ years. Manifestly considering the two cases in totality, the District Judge did not deviate from his steadfast intention to impose 15 years imprisonment as just and appropriate punishment for the crimes committed by appellant. To effectuate his original purpose, he increased by 2½ years the sentence in the bank robbery case from that which he had originally pronounced and thus offset the 2½ years reduction of the sentence in the Mann Act case.

The judgments entered on June 5, 1939, were ordered therein to serve as commitments. The date of pronouncement of the oral sentences does not appear in the record, but it does appear that appellant was under arrest at that time; and it is obvious that he was detained as a prisoner from the date the oral sentences were imposed to June 5, 1939, the date of the entry of the amended sentences pronounced in absentia, and that he has remained a prisoner continuously up to and including the present time. He was confined first in the Federal penitentiary at Atlanta, and later in the Federal penitentiary at Alcatraz.

After more than three years' confinement in these two penal institutions, the appellant filed in the United States District Court for the Northern District of California, Southern Division, a petition for a writ of habeas corpus, in which he charged that the judgments and commitments upon which he was detained in the Alcatraz prison were illegal and void. Following hearing upon the petition, the District Court for Northern California filed, on October 5, 1942, a combined order and memorandum opinion, reciting that, inasmuch as the sentences imposed in the absence of appellant by the United States District Court for Eastern Tennessee were void, the commitments based upon them, under which the appellant was being held in prison, were likewise void. The opinion-order, published in Wilson v. Johnston, Warden, D.C., 47 F.Supp. 257, 258, directed that "in conformity with the rule laid down in Re Bonner, Petitioner, 151 U.S. 242, 261, 14 S.Ct. 323, 38 L.Ed. 149, petitioner will be returned to the United States District Court for the Eastern District of Tennessee, Northern Division, for further proceedings on the said indictments."

Upon his return to the custody of the United States District Court for Eastern Tennessee, appellant petitioned that court for a writ of habeas corpus, praying full discharge from further custody. This petition incorporated the opinion-order of the United States District Court for Northern California, recited that the same constituted a concession or judgment that appellant's time had been served and that "there had been due allowance made for good behavior in accordance with the rule laid down in Biddle, Warden, v. Hall 8 Cir., 15 F.2d 840"; and alleged that District Judge St. Sure of Northern California possessed no jurisdiction "to overrule the judgment and correct the assumed errors" of the United States District Court for Eastern Tennessee and to remand appellant to the latter jurisdiction for further proceedings on the indictments.

The petition averred further that judicial notice should be taken that the petitioner had been imprisoned "for sometime," that numerous terms of court, probably more than fifteen, had been held within the district, that the business of the respective terms had been finished and the minutes thereof signed; "and that with the completion of the Court's business for the term, the Court had no further control over or jurisdiction of the matters determined thereat, and recorded in the minute books and that the only matter attempting to confer jurisdiction is the aforesaid null and void order of the District Court in California."

Appellant was granted a prompt hearing on his petition, was represented by competent counsel, and testified in person. The District Judge stated at the hearing that the recorded sentences, upon which the commitments had been issued by virtue of which appellant had been confined, had not been pronounced in the presence of the appellant; and that, when he observed his error in changing the sentences during the absence of appellant, he had conveyed this information to the prisoner by a direct letter.

Considering his "sole error" to be of a character remediable by resentence, nunc pro tunc, the District Judge denied the petition for a writ of habeas corpus and overruled the subsequent motion in arrest of judgment.

Appellant was ordered to stand up for sentence, which was thus pronounced: "It is the judgment of the Court that the sentences heretofore imposed at another term of this Court in the absence of the defendant now be pronounced in his presence; that is to say, it is the judgment of the Court that the petitioner in case No. 13166 be committed to the custody of the Attorney General for the space of two years on the first count, and for the space of 10 years on the second and third counts, the sentences on the second and third counts to be served concurrently, and that in case No. 13167 he be committed to the custody of the Attorney General for the space of five years and serve same in such institution as may be designated by the Attorney General, and that these sentences be effective as of the date originally announced June 5, 1939 and continue to be effective as of that date, and that judgment and commitment be entered now for them."

It will be observed that the District Judge did not, in this oral pronouncement, expressly direct that the sentences in the two cases should run consecutively; but the intention of the Court to make the sentences consecutive had been plainly revealed to the defendant in open court from the full context of the hearing. In the judgment and commitment orders signed for entry on the same date, the five-year sentence in case No. 13167 was ordered to commence upon the expiration of the sentences imposed in case No. 13166.

The appeal to this court is from the order entered on October 23, 1942, in the United States District Court for the Eastern District of Tennessee denying the relief sought in the petition for writ of habeas corpus and denying appellant's motion in arrest of judgment.

In our view, Judge St. Sure of the Northern District of California properly directed the return of appellant to the Eastern District of Tennessee for further proceedings in the district court there. In so doing, he followed the precise course pursued by District Judge Ervin in Price v. Zerbst, D.C.N.D.Ga., 268 F. 72, where, after holding void a corrected sentence imposed by Judge Learned Hand in the Southern District of New York on a prisoner who was not present when resentenced, but was present when his original sentence was pronounced, Judge Ervin said (op. pages 74, 75 of 268 F.): "What should be done with this prisoner? I find that in many instances the courts have released prisoners, when they found the authority for holding them was invalid; but the proper practice is laid down in the case of In re Bonner, 151 U.S. 242, 259, 14 S.Ct. 323, 38 L.Ed. 149, which is to remit the prisoner to the court wherein he was sentenced for further action by that court in conformity to law. It is objected, however, that the term of that court in which the sentence was rendered has passed, and therefore that court would have no jurisdiction to now make any further order in the case. The contrary was held in Bryant v. United States 8 Cir., 214 F. 53, 130 C. C.A. 491, where the court held that, if a court imposes a void sentence, it does not lose jurisdiction to impose a proper sentence at a later term, particularly where the question is raised at the instance of the defendant, on whom such sentence had been passed. A decree will therefore be entered, instructing the warden to return this applicant naming him to the Southern district of New York for such further action as that court sees fit to take in his case."

Both Judge St. Sure, in the instant case, and Judge Ervin, in Price v. Zerbst, supra, conformed to the opinion of the Supreme Court in Re Bonner, 151 U.S. 242, 259, 260, 14 S.Ct. 323, 326, 38 L.Ed. 149, where it was asserted: "Much complaint is made that persons are often discharged from arrest and imprisonment when their conviction, upon which such imprisonment was ordered, is perfectly correct; the excess of jurisdiction on the part of the court being in enlarging the punishment, or in enforcing it in a different mode or place ...