Oscar Douglas Nelson, Jr. v. United States

406 F.2d 1322, 1969 U.S. App. LEXIS 9028

• Court: Court of Appeals for the Fifth Circuit
• Decided: February 6, 1969
• Docket: 26795
• Status: Published

Opinion

PER CURIAM:

Pursuant to Rule 18 of the Rules of the Court, this case has been placed on the summary calendar for disposition without oral argument. 1

The appellant, who is serving a Florida state prison sentence, petitioned for annulment of a sentence imposed by the United States District Court in Tampa, Florida.

The district court denied relief on the merits, although the appellant has not commenced service of the sentence. See Peyton v. Rowe, 391 U.S. 54, 88 S.Ct. 1549, 20 L.Ed.2d 426 (1968).

The appellant’s sole contention was that it was error to impose the federal sentence while he was serving his state sentence. His presence in federal court was obtained by issuance of a writ of habeas corpus ad prosequendum, in response to his pro se motion for a speedy trial.

Trial proceedings under these circumstances are common, and have been approved in many decisions. E. g., Clark v. United States, 5 Cir. 1966, 367 F.2d 378; Gardner v. United States, 5 Cir. 1960, 274 F.2d 380.

Other contentions of the appellant need not be discussed herein, since they are alleged for the first time in his appellate briefs.

The judgment is affirmed.

1 . In order to establish a docket control procedure, the Fifth Circuit adopted new Rules 17-20 on December 6, 1968. See Wittner v. United States, 5 Cir., 1969, 406 F.2d 1165, Fn 1 and Appendix thereto.