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    Robert C. Jacobs v. Sherman H. Crouse, Warden, Kansas State Penitentiary, Lansing, Kansas, 349 F.2d 857, 10th Cir. (1965)

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    This document summarizes a court case from the United States Court of Appeals for the Tenth Circuit regarding a habeas corpus petition filed by Robert C. Jacobs, a prisoner in the Kansas State Penitentiary. The court denied Jacobs' petition, finding that Kansas state authorities did not lose or waive their right to enforce Jacobs' unserved state sentence when they temporarily released him to federal custody for prosecution. The court affirmed that federal habeas corpus is only available when a prisoner is being restrained in violation of the U.S. Constitution, and that ordinarily a prisoner sentenced in both state and federal court does not have a constitutional right to choose which sentence is served first.

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    Robert C. Jacobs v. Sherman H. Crouse, Warden, Kansas State Penitentiary, Lansing, Kansas, 349 F.2d 857, 10th Cir. (1965)

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    This document summarizes a court case from the United States Court of Appeals for the Tenth Circuit regarding a habeas corpus petition filed by Robert C. Jacobs, a prisoner in the Kansas State Penitentiary. The court denied Jacobs' petition, finding that Kansas state authorities did not lose or waive their right to enforce Jacobs' unserved state sentence when they temporarily released him to federal custody for prosecution. The court affirmed that federal habeas corpus is only available when a prisoner is being restrained in violation of the U.S. Constitution, and that ordinarily a prisoner sentenced in both state and federal court does not have a constitutional right to choose which sentence is served first.

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    Filed: 1965-08-26 Precedential Status: Precedential Citations: 349 F.2d 857 Docket: 8198_1

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    This document summarizes a court case from the United States Court of Appeals for the Tenth Circuit regarding a habeas corpus petition filed by Robert C. Jacobs, a prisoner in the Kansas State Penitentiary. The court denied Jacobs' petition, finding that Kansas state authorities did not lose or waive their right to enforce Jacobs' unserved state sentence when they temporarily released him to federal custody for prosecution. The court affirmed that federal habeas corpus is only available when a prisoner is being restrained in violation of the U.S. Constitution, and that ordinarily a prisoner sentenced in both state and federal court does not have a constitutional right to choose which sentence is served first.

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    16 views2 pages

    Robert C. Jacobs v. Sherman H. Crouse, Warden, Kansas State Penitentiary, Lansing, Kansas, 349 F.2d 857, 10th Cir. (1965)

    Uploaded by

    Scribd Government Docs
    This document summarizes a court case from the United States Court of Appeals for the Tenth Circuit regarding a habeas corpus petition filed by Robert C. Jacobs, a prisoner in the Kansas State Penitentiary. The court denied Jacobs' petition, finding that Kansas state authorities did not lose or waive their right to enforce Jacobs' unserved state sentence when they temporarily released him to federal custody for prosecution. The court affirmed that federal habeas corpus is only available when a prisoner is being restrained in violation of the U.S. Constitution, and that ordinarily a prisoner sentenced in both state and federal court does not have a constitutional right to choose which sentence is served first.

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    of 2

    349 F.

    2d 857

    Robert C. JACOBS, Appellant,


    v.
    Sherman H. CROUSE, Warden, Kansas State Penitentiary,
    Lansing, Kansas, Appellee.
    No. 8198.

    United States Court of Appeals Tenth Circuit.


    Aug. 26, 1965.

    Howard K. Phillips, Denver, Colo., for appellant.


    Richard H. Seaton, Asst. Atty. Gen., Topeka, Kan. (Robert C.
    Londerholm, Atty. Gen. of Kansas, with him on the brief), for appellee.
    Before PICKETT, LEWIS and BREITENSTEIN, Circuit Judges.
    PER CURIAM.

    This is an appeal from an order of the United States District Court for the
    District of Kansas, denying a petition for writ of habeas corpus filed by the
    appellant Jacobs, a prisoner in the Kansas State Penitentiary.

    On January 7, 1958, Jacobs was sentenced to serve a term of one to ten years in
    the Kansas State Penitentiary for the crime of forgery. On December 18 of the
    same year he was released on parole. On March 16, 1959 Jacobs was arrested
    by state authorities as a parole violator. A few days later he was delivered to the
    United States Marshal for the District of Kansas for prosecution on a federal
    charge. Jacobs was then released on bail and was later arrested in Denver,
    Colorado on the same parole violator's warrant issued in March. Almost
    immediately he was again delivered to federal authorities and later sentenced to
    serve a term of four years on a federal indictment, from which sentence he was
    given a mandatory release in October of 1962. Whereupon, the Kansas warrant
    of March 1959 was again served and Jacobs was then taken into custody by
    Kansas state authorities who returned him to the state penitentiary to serve the
    remainder of his one to ten year sentence.

    The validity of the Kansas sentence is not questioned, and admittedly, it has not
    been served. The contention here appears to be that the Kansas state authorities
    have lost, or waived, the right to further enforce the state sentence because of
    the manner in which Jacobs was released to federal authorities for prosecution
    after two arrests upon a parole violator's warrant. There is no merit to this
    contention.

    Federal habeas corpus is available to a state prisoner only when he is restrained


    of his liberty in violation of the Constitution of the United States. 28 U.S.C.
    2241(c)(3); Mooneyham v. State of Kansas, 10 Cir., 339 F.2d 209; Oyler v.
    Taylor, 10 Cir., 338 F.2d 260; Hickock v. Crouse, 10 Cir., 334 F.2d 95, cert.
    denied 379 U.S. 982, 85 S.Ct. 689, 13 L.Ed.2d 572, rehearing denied 380 U.S.
    928, 85 S.Ct. 908, 13 L.Ed.2d 817; Peterson v. Tinsley, 10 Cir., 331 F.2d 569;
    Bizup v. Tinsley, 10 Cir., 316 F.2d 284.

    In support of the claim of waiver, United States ex rel. Howard v. Ragen,


    D.C.N.D.Ill., 59 F.Supp. 374, and Reickauer v. Cunningham, 4 Cir., 299 F.2d
    170, cert. denied 371 U.S. 866, 83 S.Ct. 127, 9 L.Ed.2d 103, are relied upon.
    The Ragen case was specifically disapproved by the 7th Circuit in United
    States ex rel. Meiner v. Ragen, 199 F.2d 798, and the Reickauer case has no
    application.

    Ordinarily, a prisoner who has been sentenced in both federal and state courts
    does not have a constitutional right to select which sentence shall be served
    first. Williams v. Taylor, 10 Cir., 327 F.2d 322, cert. denied 377 U.S. 1002, 84
    S.Ct. 1937, 12 L.Ed.2d 1051; Jones v. Taylor, 10 Cir., 327 F.2d 493, cert.
    denied 377 U.S. 1002, 84 S.Ct. 1937, 12 L.Ed.2d 1051. This is usually
    determined in that 'spirit of reciprocal comity and mutual assistance' as agreed
    upon by the state and federal officials. Ponzi v. Fessenden, 258 U.S. 254, 42
    S.Ct. 309, 66 L.Ed. 607. The state court sentence not having been served or
    discharged, Jacobs is not held in violation of his Constitutional rights.

    Affirmed.

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