Wilson v. Henderson, 72-2561. Summary Calendar.
| Decision Date | 18 October 1972 |
| Docket Number | No. 72-2561. Summary Calendar.,72-2561. Summary Calendar. |
| Citation | 468 F.2d 582 |
| Parties | Percy E. WILSON, Petitioner-Appellant, v. J. D. HENDERSON, Warden, United States Penitentiary, Atlanta, Georgia, Respondent-Appellee. |
| Court | U.S. Court of Appeals — Fifth Circuit |
Percy E. Wilson, pro se.
John W. Stokes, Jr., U. S. Atty., P. Bruce Kirwan, Asst. U. S. Atty., Atlanta, Ga., for respondent-appellee.
Before THORNBERRY, COLEMAN and INGRAHAM, Circuit Judges.
Wilson appeals from the denial of his petition for a writ of mandamus. He claims that an error had been made in the computation of time which he must serve as a result of two convictions. He is currently serving a fifteen year, one hundred fifty-five day sentence.
On the basis of the district court's opinion, appended hereto, the judgment is affirmed.
APPENDIX
In the United States District Court for the Northern District of Georgia Atlanta Division
Percy E. Wilson Petitioner versus J. D. Henderson, Warden United States Penitentiary, Atlanta Georgia, Respondent.
ORDER OF COURT
Petitioner in the above named case appeared in this court and was permitted to file a complaint in forma pauperis concerning the computation of his jail sentence. A show cause order was issued and a response and traverse thereto have been filed in this court.
The undisputed facts contained in the complaint, response, and traverse indicate that petitioner was taken into federal custody on September 6, 1962. Two hundred and four (204) days later (time period number 1) on March 29, 1963 he was sentenced to nine (9) years and consecutively one (1) to three (3) years in the United States District Court for the District of Columbia. On April 8, 1963 an appeal was noted from this conviction and on April 12, 1963 petitioner executed an election not to serve pending appeal.
On September 17, 1963 petitioner was transferred to New York from the District of Columbia, still in the custody of federal authorities. On September 30, 1963 petitioner rescinded his election not to serve applicable to his District of Columbia conviction. It should be noted that the recission is one hundred and seventy (170) days (time period number 2) after the execution of the election not to serve, and that petitioner was removed from the district and circuit in which he was convicted to the District of New York while his election not to serve was pending.
On February 18, 1964 in the United States District Court for the District of New York, petitioner was sentenced to five (5) years on each of three counts to run consecutively with each other, for a total of fifteen (15) years, which sentence was made to run concurrently with the sentence petitioner was currently serving (the ten (10) to twelve (12) year sentence imposed in the District of Columbia). It should be noted here that the New York sentence commenced three hundred and twenty-five (325) days after the District of Columbia sentence was imposed. The three hundred and twenty-five (325) days separate into one hundred and seventy (170) days (time period number 2) dead time due to the election not to serve and one hundred and fifty-five (155) days (time period number 3) actually served on the District of Columbia sentence prior to the commencement of the New York sentence.
Petitioner complains of three separate blocks of jail time (parenthetically identified as time periods one through three above), each in differing amounts and covering a different period of time. In an attempt to limit confusion each time period and the complaint and response thereto will be discussed separately, as follows:
1. Chronologically the first time period for which petitioner contends he was denied credit is two hundred and four (204) days of presentence time. The sentence data record indicates that credit has been given for these two hundred and four (204) days and petitioner, in his traverse, admits that computation is correct with respect to that time. The complaint is dismissed as to time period number one.
2. Petitioner's next complaint concerns time period number two, the one hundred and seventy (170) days...
To continue reading
Request your trial
-
Carnine v. U.S.
...construction of the meaning of a concurrent sentence insufficient to invalidate plea bargain or to trigger hearing); Wilson v. Henderson, 468 F.2d 582 (5th Cir.1972) (sentence cannot commence prior to day of pronouncement even if it is to be served concurrently with another sentence already......
-
Robinson v. Cooks
...commence prior to the date it is pronounced even if it is to be concurrent to a sentence already being served." Wilson v. Henderson, 468 F.2d 582, 584 (5th Cir. 1972); United States v. Fiores, 616 F.2d 840, 841 (5th Cir. 1980) (same). Thus, the concurrent sentences imposed against Robinson ......
-
Schleining v. Thomas
...prior to the date it is pronounced, even if made concurrent with a sentence already being served.” Id. (citing Wilson v. Henderson, 468 F.2d 582, 584 (5th Cir.1972)). What was true with regard to a prior federal sentence in Flores is even more persuasive with regard to a prior state sentenc......
-
Martinez v. Stewart
...see also Stubbs v. United States, No. CIV.A. WDQ-10-2089, 2011 WL 3897952, at *3 (D. Md. Aug. 31, 2011) (citing Wilson v. Henderson, 468 F.2d 582, 584 (5th Cir.1972) and United States v. McLean, 867 F.2d 609 (4th Cir.1989) (unpublished)). Under 18 U.S.C. § 3585(b), prior custody credit cann......