Werntz v. Looney, 208 F.2d 102, 10th Cir. (1953)

208 F.
2d 102
WERNTZ
v.
LOONEY.
No. 4701.
United States Court of Appeals Tenth Circuit.

October 29, 1953.
George F. Barbary, Denver, Colo., for appellant.

George Templar, U. S. Atty., Arkansas City, Kan., Charles H. Rooney,
Asst. U. S. Atty., Topeka, Kan., for appellee.
Before PHILLIPS, Chief Judge, and MURRAH and PICKETT, Circuit
Judges.
PER CURIAM.
Clifford E. Werntz brought this habeas corpus action to challenge the legality
of his detention in the United States Penitentiary at Leavenworth, Kansas. The
principal ground for relief is that while serving a sentence in the Kansas State
Penitentiary, he also served a sentence which he had been given in the United
States District Court of Kansas. The petition was heard and disposed of as a
proceeding in habeas corpus and the trial court denied relief. This appeal
followed.
On December 13, 1945, the petitioner was committed to the Kansas State
Penitentiary by the State Court to serve one sentence of 10 to 20 years, and a
second sentence of 1 to 30 years. The two sentences were to run concurrently.
In February, 1946, the petitioner was taken from the Kansas State Penitentiary
and brought before the United States District Court of Kansas where he pleaded
guilty to a charge of kidnapping and was sentenced to serve a term of 20 years.1
The petitioner was then returned to the State Penitentiary2 where he remained
until June 19, 1951, when he was released on parole and delivered over to
federal authorities who took him to Leavenworth to serve the time remaining on
the federal sentence.
The petitioner alleged and contended in the trial court that prior to his
arraignment he had been promised leniency if he would enter a plea of guilty
and that the trial judge had advised him that it was not the purpose of the
sentence to require the petitioner to do any time in addition to the state court
sentences. This is a collateral attack upon the judgment and sentence and the
remedy therefor is limited to proceedings under the provisions of 28 U.S.C.A.
2255. Barrett v. Hunter, 10 Cir., 180 F.2d 510, 20 A.L.R.2d 965.
The petitioner contends that since the federal sentence was to run concurrently
with the state sentence, the former sentence expired when the latter did and that
he was entitled to his release when he served the state sentence. If by serving
the state court sentence the petitioner also completely served the federal court
sentence, then he would be entitled to his immediate release on habeas corpus.
It is well settled that where a sovereignty or its courts have possession of a
person, they cannot be deprived of the right to deal with such person until their
jurisdiction and remedy are exhausted, and no other sovereignty or its courts
have the right or power to interfere with such custody or possession. Lunsford
v. Hudspeth, 10 Cir., 126 F.2d 653, 655. It is equally well established that a
prisoner may be taken from the custody of one sovereign, with its consent, to be
tried in the courts of another without the loss of the right to possession of the
prisoner. In discussing this rule we said in Lunford v. Hudspeth, supra:
"As an easy and flexible means of administering justice and of affording each
sovereignty the right and opportunity to exhaust its remedy for wrongs
committed against it, there has evolved the now well established rule of comity
which is reciprocal, whereby one sovereignty having exclusive jurisdiction of a
person may temporarily waive its right to the exclusive jurisdiction of such
person for purposes of trial in the courts of another sovereignty. Thus the
offender is accorded a speedy trial and the administration of justice is expedited
by the availability of evidence, which might through lapse of time be lost, but
such a waiver is a matter addressed solely to the discretion of the sovereignty,
or its representatives having power to grant it. Ponzi v. Fessenden [258 U.S.
254, 42 S.Ct. 309, 66 L.Ed. 607], supra, and Ex parte Aubert, D.C., 51 F.2d
136. The privileges granted by this flexible rule of comity should and must be
respected by the sovereignty to which it is made available, and this respectful
duty is reciprocal, whether federal or state, because neither sovereignty has the
power to override it. Under the free exercise of this rule, no right or immunity
granted by the constitution, laws, or treaties of the United States, is invaded or
impaired."
See also Stamphill v. Johnston, 9 Cir., 136 F.2d 291; Zerbst v. McPike, 5 Cir.,
97 F.2d 253.
It was within the power of the federal court in the first instance to sentence this
petitioner and to provide that the sentence should be served concurrently or
consecutively with other sentences including those which were previously
imposed by other courts. United States v. Tacoma, 2 Cir., 199 F.2d 482; Zerbst
v. Walker, 10 Cir., 67 F.2d 667. No contention is made that the petitioner is not
being given credit for the time which he served in the state prison. It is apparent
from the record that the petitioner has not served the federal court sentence.
Consequently he is not entitled to release on habeas corpus while that sentence
is in effect.
Judgment affirmed.
Notes:
1
In this judgment and sentence it was provided that the sentence should "run
concurrently with the sentence the defendant is now serving in the Kansas State
Penitentiary at Lansing."
On February 12, 1946, the Director of the Bureau of Prisons, acting for the
Attorney General, instructed the United States Marshal for the District of
Kansas as follows:
"We have been advised that the above-named subject was sentenced January 5,
1946, to a term of twenty years to run concurrently with the state sentence he is
now serving in the Kansas State Penitentiary, Lansing, Kansas.
"The Kansas State Penitentiary at Lansing is hereby designated as the place of
confinement for Clifford Earl Werntz. It is understood that no charge will be
made to the federal government during the time he is serving the state sentence.
If the state sentence expires before the federal sentence has been served, the
case should be brought to the attention of this office for transfer or other
disposition."
The Attorney General has the exclusive power to designate the place where
federal sentences shall be served. The designation may be to institutions
maintained by the federal government or otherwise. 18 U.S.C.A. 4082.
Stillwell v. Looney, 10 Cir., 207 F.2d 359.

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208 F.

United States Court of Appeals Tenth Circuit.

George F. Barbary, Denver, Colo., for appellant.

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