Withers v. State of North Carolina

• Decision Date: 13 January 1971
• Docket Number: Civ. A. No. 2731.
• Citation: 328 F. Supp. 1152
• Court: U.S. District Court — Western District of North Carolina
• Parties: William T. WITHERS, Petitioner, v. STATE OF NORTH CAROLINA and Capt. E. C. Watkins, Unit 5557, Albemarle, North Carolina, Respondents.

328 F. Supp. 1152

William T. WITHERS, Petitioner, v. STATE OF NORTH CAROLINA and Capt. E. C. Watkins, Unit 5557, Albemarle, North Carolina, Respondents.

Civ. A. No. 2731.

United States District Court, W. D. North Carolina, Charlotte Division.

January 13, 1971.

No appearance for petitioner.

Jacob L. Safron, Asst. Atty. Gen., Raleigh, N. C., for respondents.

ORDER DENYING PETITION FOR WRIT OF HABEAS CORPUS

McMILLAN, District Judge.

In an order filed October 15, 1970 (a copy of which is attached) this court ordered petitioner, William T. Withers, to amend and clarify his petition for a writ of habeas corpus and to set forth those material facts which he says entitle him to relief. Petitioner has not submitted any additional facts which would entitle him to relief with respect to those allegations considered in the October 15, 1970 order. However, petitioner has made timely amendment to his petition and now alleges the following as grounds for relief:

(1) That he was denied due process and equal protection of laws when he was threatened, questioned, and beaten without the presence of counsel for some hours after his arrest; and

(2) That he was not given credit on his prison sentence for time served before his trial.

ALLEGATION ONE: Petitioner contends that he was interrogated without the presence of counsel. Withers, however, does not claim that any information or incriminating statement derived from interrogation during his pre-trial detention was introduced at his trial. Barefoot v. North Carolina, 259 F.Supp. 1020 (E.D.N.C.,1966). "Misconduct by the police, however reprehensible, is not a ground for federal habeas corpus if it does not contribute to a conviction." Miller v. Eklund, 364 F.2d 976 (9th Cir., 1966). If petitioner's claims of illegal police conduct are true, the proper course of action is a suit against the individual police officers.

ALLEGATION TWO: Withers also claims he is entitled to credit for time spent in prison before his commitment. Petitioner was confined from December 8, 1967 until his commitment date, September 4, 1968. Courts generally hold that whether or not a prisoner receives credit for time spent in jail prior to commitment is a matter of state law. See, 24B C.J.S. Criminal Law § 1995(5); Newell v. Page, 280 F.Supp. 203 (N.D.Okl.,1968); Gross v. Sarver, 307 F.Supp. 1105 (E.D.Ark.1970); State v. Sanders, 251 S.C. 431, 163 S.E.2d 220 (1968). Moreover, the rule in the federal courts before the Bail Reform Act of 1966 was that where the sentence imposed was less than the maximum allowed there was no requirement that credit be given for pretrial incarceration. See, e. g., Amato v. United States, 374 F.2d 36 (3rd Cir., 1967); Noorlander v. United States, 404 F.2d 603 (8th Cir., 1968).

The leading North Carolina case is State v. Virgil, 276 N.C. 217, 172 S.E.2d 28 (1970). In Virgil, the defendant was in custody from February, 1963 until March, 1965 when, in his third trial, he was convicted and committed. Defendant's first trial ended in a mistrial; his second trial resulted in a conviction but was reversed on appeal. In the third trial, defendant was convicted of non-burglarious breaking and entering with the intent to commit a felony. He was sentenced to a term of nine to ten years. (The maximum penalty for this crime is ten years. See, N.C.G.S., § 15-54.) No credit was given for the more than two years that defendant had already spent in jail. In a 5/2 decision (with Chief Justice Bobbitt and Justice Sharp dissenting) the North Carolina Supreme Court held that the state did not have to credit Virgil for time spent in jail before commitment.

While the Virgil case raises serious constitutional questions See, North...