Louis FLEISH, Appellant, v. E. B. SWOPE, Warden, U. S. Penitentiary, Alcatraz, California, Appellee

United States Court of Appeals for the Ninth Circuit1955-10-17No. No. 14669

226 F.2d 310

Summary · law.co

Holding. The judgment was affirmed; the trial court properly dismissed the habeas corpus petition on the merits because the sentencing judgment, though not excessively detailed, was sufficient to establish that the six five-year terms were intended to run consecutively.

Louis Fleish appealed the dismissal of his habeas corpus petition, in which he argued that his sentence was defective and unlawful. Fleish had been convicted on six counts in April 1939 and received five-year sentences on each count, to run consecutively. He claimed he had already served more than five years and argued that the judgment was ineffective because it failed to specify clearly the order and timing of when each consecutive sentence would begin. Fleish contended that the literal reading of the judgment—suggesting sentences commenced only seconds apart—meant they could not legally be construed as consecutive.

The trial court dismissed the petition as wholly without merit and suggested that any remedy should be pursued under a different statutory provision. The appellate court affirmed the dismissal, finding the judgment sufficiently clear to impose the intended consecutive sentences. The court noted that a judgment need not elaborate on the precise mechanics of execution to establish that sentences run consecutively; the intent to impose consecutive terms was manifest from the language used. The judgment was therefore adequate to impose a total of 30 years imprisonment across the six five-year sentences.

Summary generated by law.co from the public-domain opinion. The opinion text itself is public domain.

Key issues

Whether a sentencing judgment must specify precise timing and sequence to impose consecutive sentences
Whether a habeas corpus petition challenging the form of a judgment is cognizable
Whether consecutive sentences were validly imposed despite alleged ambiguity in the judgment's language

Procedural posture

The trial court dismissed Fleish's habeas corpus petition on the merits, and Fleish appealed that dismissal.

Authorities cited

No cited authorities resolved to law.co cases yet.

Opinion · public domain

majority opinion

PER CURIAM.

This is an appeal from an order denying and finally dismissing on the merits the appellant’s petition for a writ of ha-beas corpus. The petition alleged that appellant was held in unlawful restraint by the respondent Warden; that on April 7, 1939 he was found guilty on six counts of a twenty-seven count indictment, and that the court imposed terms of five years upon each of these six counts. He alleges that he has now served more than five years, and that under the terms of the judgment as imposed upon him that is the maximum period of time for which he could be held; that the portion of the judgment upon which he was sentenced reads as follows: “Count 1, Five (5) years; Count 3, Five (5) years; Count 12, Five (5) years; Count 15 Five (5) years; Count 18, Five (5) years; and under count 21, Five (5) years, said terms of imprisonment to run consecutively;” that such judgment was ineffective to require an imprisonment of more than a total of five years because it fails definitely to specify the order of sequence as to the execution of the several sentences; and that it fails to state with necessary definiteness the time when the several sentences shall commence.

Apparently appellant’s argument is that if the judge who imposed the sentence required three seconds to pronounce or read each item of the quoted judgment then each sentence on Count 3 began three seconds after his sentence on Count I, and that in like manner each term thereafter named began three seconds after the preceding one. The argument is that was the literal meaning and effect of the judgment rendered by the court and that terms of imprisonment so con strued would, as a matter of law, run “consecutively.”

The trial court, while expressing the view that appellant’s remedy, if he had one, must be under § 2255 of Title 28, U.S.C.A., nevertheless held and determined that the petition for the writ showed upon its face that it was wholly without merit and accordingly the petition was dismissed on the merits. We think that the action of the trial court in thus disposing of the case was proper. Butterfield v. Wilkinson, 9 Cir., 215 F.2d 320. As for the sufficiency of the judgment to provide, as the court obviously intended, that the terms of five years should be served consecutively and to follow each other in sequence, this court’s decision in Lipscomb v. Madigan, 9 Cir., 224 F.2d 410, is sufficient authority.

This case is not to be distinguished from that of United States v. Daugherty, 269 U.S. 360, 46 S.Ct. 156, 157, 70 L.Ed. 309, cited in the Lipscomb case, which held that the judgment in question “was sufficient to impose total imprisonment for 15 years, made up of three 5-year terms, one under the first count, one under the second, and one under the third, to be served consecutively, and to follow each other in the same sequence as the counts appeared in the indictment.”

As the judgment under attack in this case adequately provided for a total imprisonment of 30 years, it is apparent that the appellant’s petition was without merit.

Judgment affirmed.