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UNITED STATES v. WELCH

December 13, 1960

UNITED STATES OF AMERICA, PLAINTIFF,
v.
ELRY A. WELCH, DEFENDANT.



The opinion of the court was delivered by: John E. Miller, Chief Judge.

On December 1, 1960, the petitioner, Elry A. Welch, who is presently confined in the Federal Penitentiary at Leavenworth, Kansas, filed a motion in forma pauperis to vacate and set aside the judgment and sentence in this case pursuant to 28 U.S.C.A. § 2255.

The petition alleges the following facts:

On August 29, 1944, the defendant was indicted by the Grand Jury in this District on four counts. Count 1 charged that the defendant and one Mattie Lee Coe conspired to unlawfully transport in interstate commerce one Leon Lawhon who had been kidnaped. Counts 2 and 3 charged the defendant with unlawfully transporting in interstate commerce one Leon Lawhon who had theretofore been kidnaped, and Count 4 charged defendant with interstate transportation of a stolen automobile.

On November 17, 1944, defendant entered a plea of guilty to each of the four counts and was sentenced to 15 years on the indictment as a whole. On that same date he was delivered to the Miller County jail, and was subsequently transported on November 23, 1944, to the United States Penitentiary at Leavenworth, Kansas. A detainer was placed on the defendant by the State of Texas. In 1953 the defendant was transferred from the Federal Penitentiary at Leavenworth, Kansas, to the Federal Correctional Institution at Texarkana, Texas, and on October 13, 1953, he was conditionally released from that institution. On that same date the defendant was picked up by the Texas State officials to serve the remainder of a Texas sentence in the Texas State Penitentiary. He was released from that institution on June 24, 1957. Soon after the defendant was discharged he reported to a federal parole officer at Hugo, Oklahoma, and made the required reports until he was again taken into federal custody on October 16, 1957, as a conditional release violator. On March 10, 1959, the defendant walked away from the federal prison honor farm in Missouri. He was subsequently apprehended on October 22, 1959, and upon entering a plea of guilty to the escape charge on March 11, 1960, the defendant was assessed an additional sentence of one year and a day, to begin at the expiration of the sentences then being served.

The defendant's contentions in the instant proceeding can best be summarized by quoting from his petition. At pages 1 and 2 he states:

    "Petitioner respectfully believes that Title 28
  U.S.C.A. Section 2255 Motion to Vacate and Set Aside
  Judgment and Sentence is his proper remedy.
  Petitioner is not attacking the legality of his
  original sentence in criminal case number 3769, but
  petitioner does sincerely believe that he has served
  more than sufficient time on his original 15 year
  Federal sentence and respectfully asks the above
  entitled and Honorable Court to grant him relief."

On page 3 he says:

    "Petitioner contends that he should be given credit
  off of his 15 years Federal sentence from the time he
  was released to the Texas State Authorities from the
  Federal Correctional Institution at Texarkana on
  October 13, 1953, to the time he was discharged from
  the Texas State Penitentiary on June 24, 1957.
    "Since petitioner was in continual custody from the
  time he was assessed his 15 year Federal sentence on
  November 17, 1944, until he was discharged from the
  Texas State Penitentiary on June 24, 1957 he contends
  that he should be given credit off his 15 Year
  Federal sentence for all that time served."

On page 5 he states:

    "According to petitioners Judgment and Commitment
  papers in criminal case number 3769, petitioner was
  sentenced to the custody of the United States
  Attorney General or his authorized representative to
  a term of 15 years imprisonment from this date on, on
  the indictment as a whole, but it is petitioner's
  honest and sincere belief that the Honorable
  sentencing Judge had no intention for petitioner to
  have to serve such a long time inside and outside of
  federal custody on his original 15 years federal
  sentence."

In support of his contentions the defendant relies upon the case of Wing v. Stewart, D.C.W.D.Mo. 1948, 77 F. Supp. 257. At page 258 of that case, Judge Ridge said:

    "Comity between the United States Government and
  the several States permits a Federal prisoner, with
  the consent of the United States, to be delivered to
  a State for service of a sentence in vindication of
  State laws. If such prisoner is released by the
  Federal Government during the time of service of a
  Federal sentence imposed upon him, confinement in a
  State Penitentiary will, of course, be computed as
  servitude under the Federal sentence."

In the instant case the defendant seeks to vacate and set aside the judgment and sentence of this court pursuant to 28 U.S.C.A. ยง 2255. The ...


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