Woykovsky v. United States
| Citation | 309 F.2d 381 |
| Decision Date | 26 December 1962 |
| Docket Number | No. 17789.,17789. |
| Parties | Alexander J. WOYKOVSKY, Appellant, v. UNITED STATES of America, Appellee. |
| Court | U.S. Court of Appeals — Ninth Circuit |
John J. King, Jr., San Francisco, Cal., for appellant.
John W. Bonner, U. S. Atty., Thomas R. C. Wilson, and Melvin D. Close, Jr., Las Vegas, Nev., for appellee.
Before JERTBERG and BROWNING, Circuit Judges, and PENCE, District Judge.
Appellant, a federal prisoner held in custody at the United States Penitentiary at Leavenworth, Kansas, appeals from an order of the United States District Court for the District of Nevada entered on December 28, 1961 denying, without a hearing, appellant's motion filed on November 22, 1961 under Rule 35 of Fed. Rules Crim.Proc.,1 to correct "an unlawful and illegal" sentence imposed upon him by that court on February 25, 1954.
The history of prior proceedings discloses that on February 25, 1954, while represented by court-appointed counsel, the appellant entered pleas of Guilty to counts contained in a criminal information charging violations of §§ 495, 500 and 1708 of 18 U.S.C. and was sentenced to five consecutive two-year terms of imprisonment. On March 5, 1954, the district court modified appellant's sentence under one of the counts providing that one two-year sentence imposed on one of the counts should run concurrently with that imposed on one of the other counts, thus making a total sentence under all counts of eight years.
Appellant remained incarcerated in the federal penitentiary until paroled on September 7, 1959, nine hundred and one days prior to the expiration of the eight years imprisonment to which appellant had been sentenced. Following his release from imprisonment and during his period of parole, appellant was arrested by federal authorities, and on October 3, 1960 was sentenced to 12 years imprisonment by the United States District Court for the Northern District of Illinois, Eastern Division. On November 4, 1960, said court reduced appellant's sentence to eight years and he is presently incarcerated at Leavenworth, Kansas in the service of said sentence.
On October 31, 1960 appellant was notified by the United States Board of Parole that it had issued a detainer against him for violation of his conditional release under sentences of February 25, 1954 and that he would be required to serve the remaining 901 days of said sentences.
The purpose of appellant's motion is to have declared illegal and unlawful the sentences imposed on February 25, 1954 in order that he will not be required to serve the remaining 901 days of said sentences.
The sole question presented by this appeal is whether the district court erred in denying appellant's motion without a hearing.
Before considering appellant's contentions on this appeal, it is necessary to state that appellant was arrested in Nevada and accused of violating §§ 495, 500 and 1708 of 18 U.S.C., said offenses allegedly having occurred in the States of Connecticut, Massachusetts, Ohio and Missouri. On January 15, 1954, appellant appeared before the district court to sign five waiver of indictment forms for the purpose of proceeding under Rule 20 of Fed. Rules Crim. Procedure.2 The waiver forms were all signed by the appellant and further prosecution of the charges against appellant proceeded in the district court of Nevada under Rule 20.
On this appeal, appellant contends that the record is inconclusive (1) as to whether appellant was in fact presented with copies of the informations pending against him in Connecticut, Massachusetts, Ohio and Missouri prior to his signing the Rule 20 forms whereby he consented to the transfer of said informations to the United States District Court for the District of Nevada for pleas and sentences, and (2) as to whether he was represented by counsel at the time he signed the said Rule 20 forms. From the foregoing, appellant argues that the district court erred in denying his motion without a hearing.
The district court concluded that appellant's motion was not within the purview of Rule 35 and, therefore, treated appellant's motion as an application for relief pursuant to the provisions of § 2255, 28 U.S.C. Appellant concedes that the district court properly concluded that appellant's motion was not within the purview of Rule 35. See Green v. United States, 274 F.2d 59 (1st Cir. 1960), and United States v. Morgan, 346 U.S. 502, 74 S.Ct. 247, 98 L.Ed. 248 (1954). Appellant further concedes that his motion is not cognizable under § 2255, 28 U.S.C., since appellant is presently confined in the service of a sentence other than those which he is presently attacking. The law is well settled that a petitioner has no right to have adjudged under § 2255 the validity of a sentence where, if adjudged in his favor, he will still be confined under another existing sentence. See Oughton v. United States, 15 Alaska 140, 215 F.2d 578 (9th Cir. 1954); Kyle v. United States, 263 F.2d 657 (9th Cir. 1959). However, we believe that appellant's motion is cognizable as a proceeding in the nature of a writ of coram nobis. See United States v. Morgan, supra; Kyle v. United States, supra; Lopez v. United States, 217 F.2d 526 (9th Cir. 1954); and Tucker v. United States, 235 F.2d 238 (9th Cir. 1956). We, therefore, proceed to consider appellant's contentions.
The district court found as facts:
The record conclusively establishes that when appellant appeared in the district court on January 15, 1954 for the purpose of proceeding under Rule 20, counsel was appointed by the court to represent the appellant. The record clearly shows that on that date appellant was painstakingly informed by the district court and by his court-appointed counsel as to his rights under Rule 20. At that time waiver of indictment forms for the purpose of proceeding under Rule 20 were given to appellant. Included in the statements made to the appellant by the presiding Judge are the following:
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...(1963), expressed similar views on this question. 14 E. g., Kiger v. United States, 315 F.2d 778 (7th Cir. 1963); Woykovsky v. United States, 309 F.2d 381 (9th Cir. 1962), cert. denied, 374 U.S. 838, 83 S.Ct. 1889, 10 L.Ed.2d 1059 (1963); Migdol v. United States, 298 F.2d 513, 91 A.L.R.2d 1......
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