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Gomori v. Arnold

submitted: February 3, 1976.

GOMORI, STEVE, JR., APPELLANT
v.
ARNOLD, FLOYD, ET AL., APPELLEE



APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF PENNSYLVANIA (D.C. Civil No. 75-519).

Seitz, Chief Judge, and Van Dusen and Weis, Circuit Judges.

Author: Van Dusen

Opinion OF THE COURT

VAN DUSEN, Circuit Judge.

This appeal challenges the district court's denial of a federal prisoner's petition for a writ of habeas corpus, contending that the Warden of the U.S. Northeastern Penitentiary*fn* has erroneously computed his effective release date under a federal sentence imposed on September 8, 1969, by the United States District Court for the Northern District of West Virginia. We affirm.

The chronology of four separate sentences the petitioner has been serving since April 29, 1970, is as follows:

1. Sentence of five to 15 years on February 6, 1969, by Pennsylvania state court with release on bail pending appeal.

2. Sentence of six years on September 8, 1969, by West Virginia federal court, with release on bail pending appeal.*fn1

3. Sentence of one to 10 years on April 29, 1970, by Ohio state court and commitment for service of that sentence in Ohio institution on that date.

4. Concurrent sentences of three and five years subject to 18 U.S.C. § 4208(a)(2) on January 19, 1971, by United States District Court for the Northern District of Ohio.*fn2

On April 29, 1971, petitioner was paroled from his Ohio state sentence and transferred to Pennsylvania to begin service of the sentence described under 1 above. He was released by the Pennsylvania Parole Board on February 20, 1974, and transferred to Lewisburg for service of the West Virginia federal sentence, since a detainer based on that sentence had been filed with the Pennsylvania authorities.

Petitioner contends that he has been held in illegal custody contrary to 18 U.S.C. § 4163 "after complete service of his legal sentence on May 1, 1975, of six years,"*fn3 since the effective commencement of the federal West Virginia sentence was January 19, 1971, when the Ohio federal sentencing judge recommended that a state institution be designated as the place of service for the Ohio federal sentence.

On the other hand, respondent contends that the West Virginia federal sentence could not have commenced prior to February 20, 1974, when he was released from state custody and arrived at the federal penitentiary to serve the ...


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