17 F.R.D. 5 | S.D.N.Y. | 1955
The petitioner, now incarcerated at Leavenworth Penitentiary, moves pursuant to Rule 36 of the Federal Rules of Criminal Procedure, 18 U.S.C. “to correct error in the record of the above entitled cause.” He originally appeared pro se but was represented on the motion by counsel appointed by the court.
The purpose of the motion is to declare null and void and expunge from the Clerk’s record a document signed by petitioner entitled “Election to Discontinue Further Service of Sentence.” The net result of this motion, if successful, would credit petitioner with the period of his confinement from May 16, 1951 to November 19, 1951 while at West Street Detention Headquarters. Three prior applications based upon substantially the same facts were denied but not on the merits.
I do not agree, and believe the issue raised on the present motion may and should be determined on the merits. On this motion, unlike the prior ones which were based principally on § 2255 of Title 28 and denied without prejudice because relief was not warranted under that section, the petitioner seeks correction of the District Court records. Since these are binding on the Attorney General in determining the period of sentence and parole eligibility dates, inaccuracies thereon may be corrected by appropriate motion.
The facts upon which defendant predicates his claim for relief are as follows: On May 31, 1950 upon petitioner’s conviction for violations of Title 18, United States Code, §§ 415 and 418,
I am of the view that the petitioner’s application must be denied upon the merits. Rule 36 permits correction at any time of “clerical mistakes in judgments, orders or other parts of the record and errors in the record arising from oversight or omission”. However, this rule does not aid petitioner.
There remains only the question whether there is “error in the record arising from oversight or omission” by reason of the Clerk accepting a document which, as petitioner contends, was a nullity. The defendant on the day of sentence, May 31, 1950, was confined to the Federal House of Detention in New York and his sentence commenced to run from that date.
The defendant in substance contends that the document is void because there is no authority under the rule to discontinue service of a sentence already commenced — that the rule provides only for election not to commence service of a sentence. The argument is pure semantics. The purpose of the rule is well known. It is all too clear that had the defendant not signed the form he was subject to transfer from the Detention
The motion is denied.
. United States v. Walker, D.C.S.D.N.Y., 107 F.Supp. 218; In re John Donald Walker, D.C.S.D.N.Y., File C. 128-10; United States v. Walker, D.C.S.D.N.Y., 117 F.Supp. 503.
. Walker v. Looney, D.Kan., Docket No. 1913, Dec. 19, 1953.
. Clark v. Memolo, 85 U.S.App.D.C. 65, 174 F.2d 978; Von Baden v. Hiatt, D.C.M.D.Pa., 47 F.Supp. 683.
. Now 18 U.S.C.A. §§ 2314, 3237.
. In January, 1952 the sentences were reduced to run concurrently and not consecutively.
. Cf. Richards v. United States, D.C.Cir., 212 F.2d 453.
. 18 U.S.C. § 3568.