Howell v. United States

Fourth Circuit

Howell v. United States

199 F.2d 366, 1952 U.S. App. LEXIS 3343

CourtCourt of Appeals for the Fourth Circuit

DecidedOctober 8, 1952

Docket6451

StatusPublished

Cited by6 cases

This text of 199 F.2d 366 (Howell v. United States) is published on Counsel Stack Legal Research, covering Court of Appeals for the Fourth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

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Howell v. United States, 199 F.2d 366, 1952 U.S. App. LEXIS 3343 (4th Cir. 1952).

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Opinion

PER CURIAM.

This is an appeal from an order denying a motion made under 28 U.S.C.A. § 2255 to vacate a sentence of imprisonment. On June 13, 1940, appellant was sentenced to a term of 10 years imprisonment for forgery of a narcotics prescription. On De«ember 5, 1940 he was convicted of bank robbery and given a sentence of 20 years imprisonment to begin at the expiration of the first sentence. He served the first sen- , , , j , , ,, ■ t tence and had entered upon the service of the second, when that sentence was held void in a habeas corpus proceeding in the District Court of Kansas and appellant was returned to the court below for resentencing. On July 24, 1948 the judge of that . . , OA court sentenced appellant to a term of 20 years less the period that he had spent m prison under the void sentence, and this court affirmed. Howell v. United States, 4 Cir., 172 F.2d 213. The motion made under 28 U.S.C.A. § 2255 attacks the sentence last imposed on the ground (1) that it was to begin at a date prior to sentencing, (2) that the sentence was ambiguous and indefinite, ancj (3) that the sentence increased the sentence over that imposed by the void sen- . , , ,, , , . , tence m as much as he would be deprived , , . °fan earlier parole eligibility date to which he would have been entitled under cumula- . tive sentences of 10 and 20 years as originally imposed. These contentions are adequately answered in the opinion of the District Judge and nothing need be added thereto. On the third contention, however, point out in addition that after petitioner has elected to treat the original 20 year sentence as void and has secured a judgment to that effect, he cannot claim any benefit as of right because of that sentence, if jt js y0id, it amounts to nothing. Any time that he has served because of the sentence should be taken into account 'by the District Judge in imposing a new sentence; but that was done in this case. See Murphy v. Massachusetts 177 U.S. 155, 159, 20 S.Ct. 639, 44 L.Ed. 711; King v. United States, 69 App.D.C. 10, 98 F.2d 291, 295.

Affirmed.

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PER CURIAM.

This is an appeal from an order denying a motion made under 28 U.S.C.A. § 2255 to vacate a sentence of imprisonment. On June 13, 1940, appellant was sentenced to a term of 10 years imprisonment for forgery of a narcotics prescription. On De«ember 5, 1940 he was convicted of bank robbery and given a sentence of 20 years imprisonment to begin at the expiration of the first sentence. He served the first sen- , , , j , , ,, ■ t tence and had entered upon the service of the second, when that sentence was held void in a habeas corpus proceeding in the District Court of Kansas and appellant was returned to the court below for resentencing. On July 24, 1948 the judge of that . . , OA court sentenced appellant to a term of 20 years less the period that he had spent m prison under the void sentence, and this court affirmed. Howell v. United States, 4 Cir., 172 F.2d 213. The motion made under 28 U.S.C.A. § 2255 attacks the sentence last imposed on the ground (1) that it was to begin at a date prior to sentencing, (2) that the sentence was ambiguous and indefinite, ancj (3) that the sentence increased the sentence over that imposed by the void sen- . , , ,, , , . , tence m as much as he would be deprived , , . °fan earlier parole eligibility date to which he would have been entitled under cumula- . tive sentences of 10 and 20 years as originally imposed. These contentions are adequately answered in the opinion of the District Judge and nothing need be added thereto. On the third contention, however, point out in addition that after petitioner has elected to treat the original 20 year sentence as void and has secured a judgment to that effect, he cannot claim any benefit as of right because of that sentence, if jt js y0id, it amounts to nothing. Any time that he has served because of the sentence should be taken into account 'by the District Judge in imposing a new sentence; but that was done in this case. See Murphy v. Massachusetts 177 U.S. 155, 159, 20 S.Ct. 639, 44 L.Ed. 711; King v. United States, 69 App.D.C. 10, 98 F.2d 291, 295.

Affirmed.

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