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UNITED STATES EX REL. SMITH v. RUNDLE

April 8, 1968

UNITED STATES ex rel. Roy SMITH
v.
A. T. RUNDLE, Supt.



The opinion of the court was delivered by: HIGGINBOTHAM

 HIGGINBOTHAM, District Judge.

 The relator, an inmate at the State Correctional Institution, Graterford, Pennsylvania, has filed a petition for a writ of habeas corpus.

 Serving any period of time under an erroneously imposed or invalid sentence is unquestionably a serious deprivation. But, beyond revising or reversing an erroneous or invalid sentence, the extent of judicial redress is limited. While the banking laws may facilitate the transfer of old monetary credits to offset new debts, the Constitution authorizes no penal checking accounts. Accordingly, I find no constitutional requirement that the time relator served under a prior invalid prison sentence must be credited against the time he is presently serving on a subsequent valid sentence arising from unrelated offenses.

 Subsequent to the filing of his original habeas corpus petition, the relator filed an amendment to the petition revising the basis for his allegations, and acknowledging that the Pennsylvania statute he earlier relied on *fn1" has no bearing on the issues involved in his case. He now contends that this court should direct the state courts to grant him a hearing in order to reconsider his present sentence, as law and justice require, in light of the fact that the previous sentence was not invalidated until after he was committed to prison to serve his present sentence. Thus, by inference, the sentencing court would have the opportunity, in its discretion, to accord the petitioner the credit which this court cannot require. After careful consideration of the amended petition, and for the reasons stated more fully hereafter, I am constrained to deny relator's prayer for relief, for failure to raise a substantial federal question.

 The salient facts, as contained in the amended petition and the supplemental memoranda attached thereto, are the following:

 Smith was arrested in Philadelphia in August, 1962, and charged with a series of robberies, aggravated assaults and attempted rapes. At trial in October, 1962, he pleaded guilty to some of the charges and was found guilty on the others. On December 21, 1962, Smith was sentenced to seven concurrent 10-20 year prison terms on some of the indictments, sentence being suspended on all other bills.

 At the time of his arrest in 1962, the relator was on parole after serving approximately ten and one-half years of a 10-20 year sentence imposed in Delaware County in 1951, after conviction on charges of burglary and larceny. Subsequent to his conviction on the 1962 charges the Parole Board revoked the relator's parole on the 1951 sentence and directed that he serve the time remaining on that sentence before beginning to serve the 1962 sentence.

 In 1964 the relator successfully attacked his 1951 conviction via a so-called "Gideon writ", and was granted a new trial. On re-trial the relator pleaded guilty to the charges there involved and received a suspended sentence.

 In 1965 Smith petitioned for a writ of habeas corpus in the state courts, seeking to have the 1962 sentence credited with the approximately 10 1/2 years served on the 1951 sentence. The petition was dismissed by the Philadelphia Quarter Sessions Court June 28, 1965; the decision was affirmed by the Superior Court of Pennsylvania, February 1, 1966; and the Pennsylvania Supreme Court denied allocatur, April 28, 1966.

 After learning of the decision in Ulmer, the relator filed a Post-Conviction Hearing Act petition alleging that the holding in that case was applicable to his case also. That petition was denied by the Philadelphia Common Pleas Court, October 26, 1966; the Superior Court affirmed; the Supreme Court again denied allocatur. *fn2" Thus, the relator has apparently exhausted his state judicial remedies as required by 28 U.S.C. § 2254.

 In May, 1966, the relator filed a federal habeas corpus petition alleging the same grounds as those involved in the state court proceedings. That petition was dismissed May 25, 1966, for failure to raise a substantial federal question. The present unamended petition filed September 1, 1967, restated precisely the same allegations as the earlier petition which I dismissed. But then on January 11, ...


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