Dockery v. Hiatt

HOLMES, Circuit Judge.

Upon his plea of nolo contendere to an indictment charging him with violation of Sections 2803, 2913, and 3253, of Title 26, United States Code, appellant was sentenced to eighteen months imprisonment on the first count, and eighteen months imprisonment on the third count, the latter “to begin on expiration of sentence on the first count.” Upon denial of his motion to vacate sentence, said motion having been filed with the sentencing court in compliance with 28 U.S.C. § 2255 , appellant filed a petition for writ of habeas corpus with the court below, in which he alleged that he had completed eighteen months imprisonment, and asked that he be released from custody on the ground that, because of the provisions of 18 U.S.C. § 709a, see 18 U.S. C. § 3568, the court was without jurisdiction to impose a consecutive sentence on a separate count of the same indictment. This appeal is from the order denying the petition.

We think that appellant’s contention is without merit. Former Section 709a of Title 18, U.S.Code, on which was .based the present statute, 18 U.S.C. § 3568 , did not deprive the court of its power to impose consecutive sentences. Eyler v. Aderhold, 5 Cir., 73 F.2d 372 ; Ellerbrake v. U. S., 7 Cir., 134 F.2d 683 , certiorari denied 319 U. S. 775 , 63 S.Ct. 1435 , 87 L.Ed. 1722 , rehearing denied 320 U.S.. 810, 64 S.Ct. 30 , 88 L.Ed. 490 ; Terrell v. Biddle, 8 Cir., 139 F.2d 32 , certiorari denied Terrell v. Pescor, 321 U.S. 794 . 64 S.Ct. 785 . 88 L.Ed. 1083 . rehearings denied 322 U.S. 767 , 64 S.Ct. 941 , 88 L.Ed. 1593 , 769, 64 S.Ct. 1053 , 88 L.Ed. 1594 . The order appealed from is affirmed.

Affirmed.