Hodge v. United States
Aaron HODGE (aka Chic DeLeo) v. United States
- Proceeding
- district
- Area
- criminal
- Panel
- Jesse W. Carter (author)
Analysis
The court considered a prisoner's motion to be transferred from a federal penitentiary to a local county jail to facilitate his pending appeal. The court granted the motion, directing the Marshal to move the petitioner to San Diego, while noting that the petitioner had no legal right to such removal under the amended Federal Rules of Criminal Procedure.
| What the court decided | The model |
|---|---|
Motion to return petitioner to San Diego County jail granted“The motion to return the petitioner to the San Diego County jail is granted and the Marshal is directed to move the petitioner to San Diego.” | agree with court The court correctly identified that the July 1, 1966 amendment to Rule 38(a)(2) eliminated the defendant's option to elect not to serve a sentence while in confinement pending appeal, thereby extinguishing any prior election. However, the court granted the transfer based on practical considerations regarding the substitution of local counsel for the pending Ninth Circuit appeal, rather than a legal right to transfer. This is a discretionary administrative accommodation rather than a legal entitlement, and the order is internally consistent in distinguishing between the lack of legal right and the grant of the request for convenience. |
The order itself: sound with gaps — The order is sound with gaps. It correctly applies the 1966 amendment to Rule 38(a)(2) to determine that the petitioner has no legal right to remain in local custody based on a prior election not to serve. However, it grants the transfer without citing specific statutory authority for the court's power to order such a transfer for the convenience of counsel substitution, relying instead on the practical necessity of the pending appeal. The reasoning is defensible but lacks explicit citation to the specific procedural mechanism or local rule authorizing the transfer for non-legal reasons.
Opinion — Carter
JAMES M. CARTER, Chief Judge.
Petitioner has forwarded to the clerk and there was lodged October 10, 1966, a “Second Motion” to be returned from the U. S. Penitentiary at Terre Haute, Indiana, to San Diego County jail.
The first motion was denied since, among other things, the petitioner had made no written election not to serve his sentence and secondly the Court, despite petitioner’s motion, desired he receive credit for the time served.
Although not raised by the petitioner, there has come to the court’s attention, the views of the Bureau of Prisons on the July 1, 1966 amendment to Rule 38 (a) (2), Rules of Criminal Procedure.
In the September issue of Federal Probation, p. 61 appears an article by Eugene N. Barkin, Legal Counsel to the Director of Prisons. In discussing the amendment to Rule 38, Barkin states:
“Rule 38(a) (2) was amended to eliminate the defendant’s option not to serve his sentence while in confinement pending appeal * * “Again, in view of the provision that the amendment will govern pending matters and elections not to serve relate to appeals, it seems apparent that all prior elections not to serve are extinguished by the amendment.”
The Court agrees with the analysis.
Assuming petitioner has elected not to serve his sentence as he claims, then since his appeal is still pending, that election was wiped out by the amendment of July 1, 1966, to Rule 38, Rules of Criminal Procedure.
However, the petitioner has an appeal pending in the Ninth Circuit. A San Francisco attorney was originally appointed by the Circuit. It now appears that a San Diego attorney may be substituted in the case.
Thus, although the petitioner has no right to be removed to San Diego, nevertheless, It is ordered that (1) The clerk file the lodged “Second Motion”.
(2) The motion to return the petitioner to the San Diego County jail *549is granted and the Marshal is directed to move the petitioner to San Diego.
(3) Copies of this order be mailed by the clerk to— (a) Warren Reese attorney for petitioner (b) Petitioner (c) Eugene N. Barkin, Legal Counsel to the Director of the Bureau of Prisons, Department of Justice Washington, D. C.
(d) The United States Attorney at San Diego.