Theodore Green v. United States

Judgе, WOODBURY, Chief Before ALDRICH, HARTIGAN Judges. 734 Judge. by February 2, ap- and no 1953, further WOODBURY, Chief plications enlarging for time for fil- the appeal of the This is an from orders docketing and in either were made for the United States District Court court, although the court below or in this denying mo- District of Massachusetts might applications such made have been vаriously petitions filed tions and entitled 39 either court under Criminal Rule by pro appellant, se, the in further efforts (c), for since under that Rule the time for armed bank have his sentence filing docketing may and be ex- by robbery aside, or at reduced set least indefinitely. tended making of as of date its commence the imposition. prose- Green to We allowed of the time months Over two appeal pauperis cute his on forma 1953, April 9, docketing expired, an on original papers request ap- and at his Attorney filed a assistant United States pointed represent ap- him on counsel dis- and to docket motion in this court peal. prosecu- appeal for want of miss Green’s upon proof both tion with of service fall of 1952 Green was tried for counsel of record guilty jury found in the court below and accompanied The motion below. robbery of bank armed violation dis- of the clerk of the the certificate (d). On Title 18 and U.S.C. § 21(3) rеquired our Rule trict court as 27, 1952, im- below the court then Rule under our and was returnable begin posed sentences Green’s April 15, counsel 26 1953. Neither on prison from state where filed for memorandum then Throughout a state court sentence. gov- counter-motion, opposition post-trial his trial and dismiss to docket ernmеnt’s motion and represented by proceedings Green was on its return was submitted to this court two members of the Massachusetts bar days 17, day later, April two and choice, of his own both known well docketing an court entered order experience and court to be men of dismissing appeal for and Green’s competence persons ac- the defense diligent prosecution. Over want intervening years signed appeal of crime. cused by Notice has heard this court timely both of counsel was Green’s nothing of Green further on behalf duplicate filed in in the court below. counsel of record either his duplicate notice a statement although they whom, below, both of the docket entries were forwarded to appearances for a co- their withdrew required by (a)

court as Criminal Rule 37 day defendant, Green’s remain to this (D (2). in that court.2 counsel of record 1952, 10, On court below December application еnlarged does not that we have of counsel mean contrary, filing docketing On not heard from Green. time Green’s appeal January 12, to one has resorted 1953—the 70th since day legal 1952, 29, another the en maneuver after —and enlarged set aside below the time deavor ‍‌‌​​‌‌​​‌​‌‌​‌‌​‌‌​‌​​‌​‌‌​‌‌‌​‌‌‌​‌​‌​‌​​‌​​‌‌​‍further filing docketing appeal reduced. Green v. United See 1956); Id., February 2, day. 256 F.2d F.2d 400 (C.A.1, 1953—the 90th On 854, 483, denied, 358 U.S. 79 S.Ct. December granted the court below cert. 83, (1958) ; Id., F.2d prosecute L.Ed.2d 87 leave peal respectively (1959) pauperis 59, 216 and and ordered that forma (1960); affirmed, 301, transcript 365 U.S. he be furnished with (1961). government See 5 L.Ed.2d 670 evidence at his trial at ex- pense.1 dismissed, appeаl 372 U.S. also 313 F.2d cert. was not Green’s docketed January copy transcript 1. A counsel died of tlie in 9 volumes One Green’s February 18, 12, 1955; is still active at filed the other in the court below on of criminal cases. bar in the defense longer representing 9 L.Ed.2d 976 83 S.Ct. him, government properly that Green wherein we directed served heаring dismiss, them at which he with of its court below notice motion to (D. successful, properly this court notified them of F.Supp. Mass.1963). the action hearing In addition see taken that motion after (D. nothing (D.Mass.1961), from of them. either thought Mass.1962). far, This court as court noted then and still thinks So rights here, fully protected that last time Green “his efforts Green’s were by treating conspicuous his have not been crowned with counsel in the court below representing appeal. in Alca as still him success.” While is not still To he traz, confinement, ap- at have still in now assumed otherwise and to have pointed Lewisburg, Pennsylvania. place counsel in their would have beеn to that assume Green’s counsel were catalogue is no alle- There need duty so derelict in their as of members gations and and ad- contentions made the bar as to abandon their client with- peti- vanced in various and motions litigation. out notice of mid-course rejected tions to be considerеd We cannot believe that counsel of the Passing that have the court below. those represent calibre involved would cease rejected by this been considered and withdrawing their client without their previous those occasions and appearances below, or, in the court clearly that are insufficient as a matter government’s notice of the motion and law, directly primary of we come to the this court’s thereon, action without noti- appeal. contention advanced on this fying they longer rep- That contention is that this court de- Having every resented Green. reason to prived сonstitutional believe and no reason to doubt rights by counsel, representation represented by competent Green was process equal pro- due and to law choice, counsel of his own this court saw tection of the laws it dismissed his appoint no occasion to counsel for him. original рauperis appeal forma Indeed, to have done so under cir- diligent prosecution April want of cumstances would have been to in- advising 1953 without first of his prosecution vite confusion in the of the right then, to counsel and unless satis- appeal. voluntarily fied that Green had either intelligently ap- to abandon his elected Moreover, ‍‌‌​​‌‌​​‌​‌‌​‌‌​‌‌​‌​​‌​‌‌​‌‌‌​‌‌‌​‌​‌​‌​​‌​​‌‌​‍point far is made peal proceed counsel, or to without as- too late. Had counsel fact abandoned signing represent ap- counsel to him on notice, Green without which can hard we peal. short, asked to we are strike ly believe, surely must known against the dеfault entered years ago, Green eleven many years certainly ago. that fact He appeal reinstate his could not have been unaware for point prosecute now. appeal decade that his had not been prosecuted. Yet, spite It true that inasmuch as fact appeal intervening years that over Green’s was docketed appear ingenuity has no formal shown remarkable dismissed there was thinking up setting ance of counsel for him in this court. reasons for aside reducing competent spite But he had counsel of and in previous his own fact that on choice the court below who some occa appeal represented had sions has filed notice of on his court- behalf copy appointed counsel, as this court well knew the first time suggestion ap in its has that his document files. be been made There peal nothing strong to indicate that should be reinstated.3 The Grеen’s reject pres- suggestion expected tbe We skill to be from members of Green’s opinions past ent counsel has of the court this court bar. Our and those legal high held Green standard of below show full and careful consideration to the favoring prompt disposition void, public policy reversed, existed, in law in Criminal hence never so that embodied of criminal 39(d) (2) should is not federal sentence be held to com Rules day naught imposed. mence on it was without the and set frustrated argument appeal. has a certain reasons.4 best categorically Title Ignoring in the deficiencies technical explicitly рrovides: sentence of im “The has done pleadings, this court as prisonment person convicted an past, di- come we Green’s in a offense court of the United States presented rectly contention to the second shall commence to run from date on appeal. is that Green That on this рerson which such is received at credit should be penitentiary, reformatory jail serving on the served for time ishe now ” * * * service of said sentence. And serving he was court sentence state prescribe “No further: shall sentence court below. in the convicted he was any computing other method of the imposed catalogue the A sentences term.” Supe in Massachusetts Green the statutory is ab This command appears below in court rior Court and in solute and has held to be so reported opinion latter in the opinions in cir considered other (D.Mass.1961) wherein 380 198 cuits, that a sen with the result federal presently undеr considera the contention cannot run until com tence commence to rejected. It will suf tion was made pletion im of service of a sentence state 1952, 2, say Green October fice to on posed being after sentence served Su in the Massachusetts was sentenced prisoner imposi аt the time years perior 20 and that Court 15% sentence, tion of such as a imposed upon Green sentence assaulting escape sentence for a 27, 1952, which on October below prison guard. Taylor Baker, 284 See serving, pronounced “to is he now (C.A.10, 1960), denied, 43 365 cert. prison upon begin upon from 814, 695, 81 5 L.Ed.2d 693 serving you ordеr now under sentence are Heritage, and Lamb v. 310 F.2d court sen court.” The state the state 1962), (C.A.5, and cases cited. nomine, sub Common reversed tence was Ekberg States, Domanski, 66, v. United 167 F.2d 332 Mass. wealth 1948), point (C.A.l, is in for in 368, N.E.2d on May 1955, that case this court was with 16, concerned was released custody only consecutive federal sentences. from to be state bail picked up by a marshal to com federal remaining contention The serving present im mence sentence against discriminated is that posed in the court below October longer given a trial after because plead a than co-defendant who sentence guilty оne count of the indictment ed Certainly impro is no there understanding him that as to suggest priety, impropriety is indeed no be dismissed two counts would other ed, imposing in a federal sentence prosecu for the testified who thereafter upon completion of a state commence discus to merit tion. It is toо frivolous presently being Lavoie served. sentence sion. 310 F.2d affirming Judgment (C.A.1, 1962), ar will be entered and cases cited. The gument District Court. orders is that Green’s state sentence appeals inartistically (2) provides in questions 4. Rule however presented must taken within And criminal cases days them. have entry judgment, reject knowledgе Rule personal also after we 39(d) provides court-appoint- suggestion in criminal that Green’s given preference appeared past shall he ed in peals in civil cases. than as advocates. more as amici curiae Judge ALDRICH, (concurring noted that Green did not need in to be part dissenting part). satisfy federal institution to the re quirements of that section. Under I concur the main court’s could have confined regard opinion, I but with cannot desig state or federal institution what the court defines as the refusal Attorney And, nated General. credit for time served in state fact, commencing question on a void sеntence. The conformity with the recommendation of unjust accept- whether an is to result concurrency made the district court other; permits ed no because statute in its second cf. Montos v. Unit opinion I least read in court’s States, Cir., 1958, ed 261 F.2d fair, belief that its result but Attorney designate General did the state it is dictated. government institution. The record 25-year which recognizes the file that service of the imposed now the district began second federal sentence forthwith. court in October 1952 to commence From and after October 1953 I see being a sentence then in the state served technical, any, the most if be- diffеrence court. In October 1953 Green received Ekberg. tween ease and It is true sentence, another federal but this one serving that Green was not the first fed- years, was for three was ordered eral sentence at the time that was in concurrently be served with the state only prison, the state but the second. sentence. by Ekberg the same token not vacated, Green’s state court sentence serving the second when federal sentence Domanski, sub. nom. v. Commonwealth penitentiary pur- he was the federal 332 Mass. N.E.2d but was McNally Hill, suant to the first. custody continued in state until released Warden, 1934, May 1955, given at which time he was 238; Kay 79 L.Ed. Unitеd to the Marshal. Cir., 1960, 279 734. The result for a asks declaration that service Ekberg not reached regarded present of his as sentence be technical, legal grounds, grounds but on having May 1955, commenced not in but justice. 1952, or, latest, in October at the Oc- tober 1953. Furthermore, I would have Green’s simply credit date back Had all he been while a federal go penitentiary principle As a matter of it Green’s result would should cer tainly upon Indeed, reached void back to October 1952. if it were ing of go first of consecutive sentences. back estab 1953 this ‍‌‌​​‌‌​​‌​‌‌​‌‌​‌‌​‌​​‌​‌‌​‌‌‌​‌‌‌​‌​‌​‌​​‌​​‌‌​‍would Ekberg States, Cir., 1948, 167 singular lish a that a rule man who is position given F.2d 380. The court’s is that a second federal sentence is better the case at bar is different that since off than one who It received one. prison, my Green was in state prisoner whether law is view that a who has not, proves he had not been “received served what to be bad time under penitentiary, reformatory jail a void sentеnce should be entitled ” * * equitable principles service of said sentence. [federal] familiar to have that * However, may applied pending be to a time on and after * by suggest open prisoner I do not mean that federal sen I that it was to a bring proceedings claiming tence is to relate back to include whole federal sentence, state but a state should sentence have been the date that the federal service would held void in order obtain the benefit principle have commenced had it realized of this rule. The of fairness suggest the state court was void. I sentence The to the limited case where socially just, I former but think a sentence is voided as course legally jurisdiction supportable well, imposed it, the latter as and not reim- grounds posed. of mistake. Nor would deny

'sentence, draw- that to unjustifi- lines and federal state

able. nothing in cases cited find I court, similar cases the further or in сourt, district cited contrary. In those 383, to the 380 at given prisoner a sen- federal tence, to commence service custody under state from state being he was Thereafter then served. and held a second state custody. rejection further state regarded argument that he was to sen- as started termi- first statе sentence

tence e., concurrently nated, with the sub- i. séntenee, sequently imposed ‍‌‌​​‌‌​​‌​‌‌​‌‌​‌‌​‌​​‌​‌‌​‌‌‌​‌‌‌​‌​‌​‌​​‌​​‌‌​‍state second distinguish- to me sound and seems both present case. able CRANZ, Defendant, ROSEN

Samuel Appellant,

v. America, UNITED STATES Appellee. Joseph Balliro, Boston, Mass., with J. Defendant, DiPIETRO, Anthony Hutton, Boston, Jr., L. whom Albert Appellant, brief, Mass., appellants. was on McKinley, U. E. Asst. S. William America, UNITED STATES Lessard, Atty., A. U. with whom Alton Appellee. Atty., brief, appellee. S. ROMANO, Defendant, Appellant, Frank Judge, WOODBURY, Chief Before ALDRICH, Cir- HARTIGAN and America, UNITED STATES Judges. cuit Appellee. Judge. HARTIGAN,

Nos. On this court handed March Appeals Court of affirming opinion down in this its Circuit. First judgment of Dis- the United States July trict for the District of Maine. Court Supreme Court On March 1964 the case of

decided the Preston 881, 11 holding L.Ed.2d ‍‌‌​​‌‌​​‌​‌‌​‌‌​‌‌​‌​​‌​‌‌​‌‌‌​‌‌‌​‌​‌​‌​​‌​​‌‌​‍777 a war- search of an without automobile

Case Details

Case Name: Theodore Green v. United States

Court Name: Court of Appeals for the First Circuit

Date Published: Jun 25, 1964

Citation: 334 F.2d 733

Docket Number: 6253

Court Abbreviation: 1st Cir.