The opinion of the court was delivered by: HIGGINBOTHAM
Earl Thomas Sadler, presently incarcerated at the United States Penitentiary at Lewisburg, Pennsylvania, has petitioned this court to vacate his sentence. This sentnce was imposed after his plea of guilty to a four-count indictment charging violations of the Federal Bank Robbery Act, 18 U.S.C. § 2113(a), (b) and (d). On July 20, 1966 he was sentenced to a term of eight (8) years on count one. The sentence on counts two, three, and four was a five-year concurrent term and that sentence was to run consecutively to the sentence under count one. The execution of the five year sentence was suspended, and the defendant was placed on probation for a period of five years subsequent to the sentence on count one. The factual and legal ramifications of the consecutive five year sentence of probation on counts two, three and four will be dealt with in greater detail in Section III, infra of this opinion.
The petitioner makes the following multiprong challenges as grounds for the vacation of his sentence under 28 U.S.C. § 2255:
(1) That it was a violation of due process to sentence him on the federal offense prior to the completion of his previously imposed state sentence for separate, unrelated, and prior crimes.
(2) That he was denied the opportunity to "have made objections or challenges to the array of grand jurors" before his arraignment and plea to the indictment. It should be noted that he never made any request to challenge or object to the array of the grand jurors.
(3) That he was not afforded an opportunity to confront his accusers.
(4) That he was mentally incompetent at the time of the bank robbery, at his arrest, when he made statements, and when he plead guilty because he was at all those times under the influence of narcotics.
(5) That by reason of the sentences imposed on counts two, three and four, he was placed "twice in jeopardy for primarily the same offense."
Because of the importance of the legal issues raised, Ross Crumlish was appointed as counsel for petitioner. Though not financially compensated, Mr. Crumlish has represented the petitioner with extraordinary diligence. He amended petitioner's original complaint to allege with far greater precision the grounds for relief and subpoenaed for the initial hearing Boston police officers and special agents of the Federal Bureau of Investigation, who at the critical time in issue had been assigned to Boston.
After an evidentiary hearing,
I have denied the petitioner any relief under 28 U.S.C. § 2255 for the reasons stated hereinafter.
The gist of petitioner's attack on his sentence is that he was mentally incompetent because of his addiction to narcotics at the time of the alleged offense, his conviction, and his plea of guilty before me. Although there was testimony from the petitioner that he took daily injections of heroin prior to his arrest (N.T., September, 1968, pp. 5-8), there was also testimony at the hearing before me which I find credible and more persuasive that petitioner was not rendered mentally incompetent by narcotics at any of the following times: at his commission of the offense, at his arrest, and at the time he made statements or a confession, and when he plead guilty.
One of the arresting officers, Detective William Roe of the Boston Police Department, testified that though petitioner was under the influence of narcotics, that nevertheless petitioner was able to understand the questions posed to him and to communicate coherently. (N.T., March, 1969, pp. 10, 24). As to petitioner's allegation that he was mentally incapable at the time of his arrest or unable to understand the nature of the proceedings against him (N.T., September, 1968, ...