Pitisci v. Hardwick

138 F. Supp. 857, 1955 U.S. Dist. LEXIS 2268

• Court: District Court, N.D. Georgia
• Decided: June 14, 1955
• Docket: Civ. A. No. 5185
• Status: Published

Opinion

HOOPER, Chief Judge.

Applicant, a prisoner in the United States Penitentiary at Atlanta, Georgia, ■seeks release on writ of habeas corpus contending that he is being held to serve ten years, whereas his judgment only aggregates five years.

He attaches to his application a copy of the transcript made at the time he was sentenced for purposes of showing he actually received a five year sentence rather than ten years.

However, a study of the transcript and of - the sentence imposed by the Court does not bear out his contentions. The applicant Pitisci was sentenced at the same time that one Alvarez and one Blanco were sentenced. The Court first announced the sentence as to Blanco, announcing a five-year sentence under Indictment No. 5923 on the conspiracy count, also “five years each on the substantive counts as set forth in the indictment, the five years sentences on the substantive counts are to run concurrently but they are to run consecutively to the sentence on the conspiracy count.” The Court added: “That same sentence will apply to Pitisci.” The sentences as to the latter are in accord with the foregoing, giving Pitisci a total of ten years.

This Court is deciding the matter on its merits and not requiring applicant to file a motion under 28 U.S.C.A. § 2255. This action involves the construction of the sentence and this Court is able to construe it. See Mills v. Hunter, 10 Cir., 204 F.2d 468; Holloway v. Looney, 10 Cir., 207 F.2d 433; Butterfield v. Wilkinson, 9 Cir., 215 F.2d 320; Armstrong v. United States, 6 Cir., 210 F.2d 951.

Petition for habeas corpus is dismissed.