455 F2d 983 Johnson v. C Henderson

455 F.2d 983

Alphonse JOHNSON, Petitioner-Appellee,
v.
C. Murray HENDERSON, Warden, Louisiana State Penitentiary,
Respondent-Appellant.

No. 71-3125 Summary Calendar.*

United States Court of Appeals,
Fifth Circuit.

Feb. 17, 1972.

Jack P. F. Gremillion, Atty. Gen. of La., Stacey Moak, Asst. Atty. Gen., Baton Rouge, La., for respondent-appellant.

Alphonse Johnson, pro se.

Before BELL, DYER and CLARK, Circuit Judges.

PER CURIAM:

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1

The State of Louisiana appeals from an order of the district court, 328 F.Supp. 704, granting relief to a Louisiana state prisoner on a writ of habeas corpus. We affirm.

2

Alphonse Johnson was convicted of theft in a state court in 1959. After serving one-third of his 10-year sentence he was paroled; but while on parole he pled guilty to simple burglary and was sentenced, on January 11, 1968, to five years. The five-year sentence was to run consecutively with the balance of the ten-year sentence, the parole having been revoked. However, on December 2, 1970, the earlier theft conviction was declared void in a habeas corpus proceeding in the United States District Court for the Western District of Louisiana. The state was given 30 days to retry Johnson, but failed to do so. Johnson then sought relief in the court below claiming credit on his five-year sentence for all time served on the prior void conviction. Alternatively, he contended that he was at least entitled to credit from the date his five-year sentence was imposed. The district court found no merit to Johnson's first contention, Davis v. United States Attorney General, 432 F.2d 777 (5th Cir. 1970), but found his second to be meritorious and directed the state to give him credit on his five-year sentence from the date of imposition.

3

Had it not been for the intervention of the invalid ten-year sentence, Johnson would have commenced service of the five-year sentence on the day of its imposition. Therefore he is clearly entitled to credit on his five-year sentence from the date of its imposition. Meadows v. Blackwell, 433 F.2d 1298 (5th Cir. 1970).

4

Affirmed.

*

Rule 18, 5th Cir.; see Isbell Enterprises, Inc. v. Citizens Casualty Co. of New York, 431 F.2d 409, Part I (5th Cir. 1970)