UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT
decided: December 2, 1968.
UNITED STATES OF AMERICA EX REL. JOHN LESTER, APPELLANT,
JACOB J. PARKER
Kalodner, Forman and Stahl, Circuit Judges.
Author: Per Curiam
Opinion OF THE COURT
On December 9, 1959, John Lester, the appellant, now a prisoner in the United States Penitentiary at Lewisburg, Pennsylvania, was indicted in the United States District Court for the Eastern District of Pennsylvania in two counts. The first charged him with conspiracy to violate 18 U.S.C. § 371*fn1 and the second with a substantive violation of 18 U.S.C. § 2113(d).*fn2
On January 10, 1960, appellant pled guilty to an indictment by the Philadelphia County Grand Jury alleging violation of the laws of Pennsylvania based upon the same transaction upon which the federal indictment was grounded.
On February 9, 1960, appellant was brought from the custody of the Commonwealth of Pennsylvania under a writ of habeas corpus ad prosequendum to the United States District Court for the Eastern District of Pennsylvania where he was sentenced to imprisonment for five years on the second count of the indictment to commence upon his release from the custody of the Commonwealth of Pennsylvania.*fn3 Thereupon he was remanded to the Pennsylvania authorities pursuant to the requirement of the writ of habeas corpus ad prosequendum.
Thereafter, on February 29, 1960, appellant withdrew his plea of guilty in the state court, went to trial and was convicted and sentenced to from 6 to 12 years in prison.
On November 21, 1966, he was released from the state prison and, pursuant to a detainer, was turned over to the federal authorities to begin his federal sentence.
In 1968 appellant filed a motion under 28 U.S.C. § 2255 in the United States District Court for the Eastern District of Pennsylvania to vacate or set aside its sentence of February 9, 1960 which, he contended, was "repugnant to due process of law in that it was imposed to begin running at an uncertain future time." The District Court found no merit to his contention and denied the motion. This appeal followed.
Appellant here reiterates the arguments he raised in the District Court asserting that since no sentence had been imposed by the Commonwealth at the time of the federal sentence, it was to run an unascertainable future time.
It is true that in this case appellant was sentenced in the federal court prior to the imposition of the state court sentence. Appellant stresses this feature as emphasizing the uncertainty of the federal sentence and as distinguishing this case from those wherein a state sentence existed at the time of the imposition of the federal sentence.*fn4 The distinction fails in the face of United States v. Kanton*fn5 and Gunton v. Squier*fn6 where the federal sentences preceded state court sentences precisely as in the case at bar.
As cited by appellant, the Supreme Court in United States v. Daugherty*fn7 left no doubt that "Sentences in criminal cases should reveal with fair certainty the intent of the court and exclude any serious misapprehensions by those who must execute them." (Emphasis supplied.) Appellant apparently overlooked the immediate following sentence in which the Court added: "The elimination of every possible doubt cannot be demanded." The federal sentence gave no ground for "serious misapprehension" as to its execution. It was clearly tailored to follow the expiration of such sentence as the state's claim on the appellant would support. We find no lack of "fair certainty" in the sentence under discussion. Other arguments advanced by appellant are equally without merit.
The order of the United States District Court for the Eastern District of Pennsylvania of February 1, 1968 denying the appellant's motion under 28 U.S.C. § 2255 to vacate or set aside his sentence will be affirmed.