328 F. Supp. 704 | E.D. La. | 1971
JUDGMENT AND ORDER
On June 8, 1959, after having been convicted of theft in Tensas Parish, petitioner Alphonse Johnson was sentenced to the Louisiana State Penitentiary for a period of ten years. While on parole, after having served one-third of this ten year sentence, the petitioner pled guilty to a charge of simple burglary in the Twentieth Judicial District Court of Louisiana on January 11, 1968 and was sentenced to an additional term of five years. The five year sentence was to run consecutively with the balance owing on the previous ten year term, petitioner’s parole having been revoked because of the commission of this crime. However, on December 2, 1970 the previous ten year sentence was declared null and void in a habeas corpus proceeding before the United States District Court for the Western District of Louisiana. (Docket No. 16,162). In those proceedings Judge Dawkins gave
Seeking relief in State Court, the petitioner applied for a writ of mandamus to the Nineteenth Judicial District Court of Louisiana, but he was denied relief. He then applied for writs of certiorari, prohibition, mandamus, and habeas corpus to the Louisiana Supreme Court, but once again on March 17, 1971 he was denied relief. He now seeks habeas corpus relief from the Federal District Court. His petition was first filed in the Western District of Louisiana since that was the Court which granted him relief initially, but his case was transferred to this Court under the authority of Title 28 U.S.C.A. § 2241. We find that the petitioner has sufficiently raised the issues presented in this federal petition in State Courts of Louisiana and that he has therefore exhausted his State Court remedies as required by Title 28 U.S.C.A. § 2254.
Considering now the petitioner’s claim, his first contention is without merit. A similar argument was made without success in Davis v. U. S. Attorney General, 432 F.2d 777, 778 (5th Cir. 1970) rehearing denied. In that case the Fifth Circuit said:
“The basis of appellant’s contention is that while serving time under an invalid sentence he managed to earn credit against a future unrelated sentence for a crime not yet perpetrated. We cannot accept such a proposition. An allowance for prison time previously served under a void commitment does not reduce sentences imposed as a result of new and different crimes. U. S. ex rel. Smith v. Rundle, 285 F.Supp. 965 (E.D.Pa.1968); Thacker v. Peyton, 289 F.Supp. 368 (W.D.Va.1968). The Mississippi sentence therefore remains undisturbed since it was incurred for the commission of an offense unrelated to the original crime and not even in existence when appellant earned the credit in the Atlanta penitentiary. Cf. Fitzgerald v. Sanford, 145 F.2d 228, 5 Cir., 1944, cert. den. 323 U.S. 806, 65 S.Ct. 311, 89 L.Ed. 643.”
His second contention however is meritorious. The rationale is stated in United States ex rel. Olden v. Rundle, 279 F.Supp. 153, 154 (E.D.Pa.1968):
“ * * " if an individual has been convicted of a criminal offense, sentenced and subsequently returned to prison as a parole violator for the prior conviction, he is in effect serving concurrent sentences. If the sentence on which he has been paroled is subsequently declared invalid, the new sentence should he computed as of the date of its imposition; since, when the former is invalidated, it is as though it had never existed, and the effect of the recomputation is to give the prisoner credit for the time he would have served had there never been a prior sentence. The relator has been given credit for the time served on the 1939 sentence which ran concurrently with the 1964 penalty.”
This same rationale is appropriate here.
For these reasons, it is the judgment of this Court that the petitioner’s re
It is further ordered that a copy of this Judgment and Order be served, by United States mail or otherwise, in accordance with law, upon petitioner and respondent and upon counsel of record, if any.
