291 F2d 202 Newcombe v. L Carter

291 F.2d 202

David G. NEWCOMBE, Appellant,
Samuel L. CARTER, Chief Records Clerk, United States Penitentiary, Atlanta, Georgia, Appellee.

No. 18856.

United States Court of Appeals Fifth Circuit.

June 12, 1961.

David G. Newcombe, pro se.

Robert G. Hunt, Asst. U. S. Atty., Atlanta, Ga., for appellee.

Before JONES and BROWN, Circuit Judges, and DE VANE, District Judge.


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The appellant, David G. Newcombe, was sentenced in the Southern District of New York to a two-year term of imprisonment. Shortly afterward he was given two sentences in the Northern District of Georgia, each for two years to run concurrently and to commence "upon the expiration of, or legal release from, the sentence" imposed in New York. He brought an action in the district court seeking a declaratory judgment that the New York sentence and the Georgia sentences should not be aggregated in determining his eligibility for parole. From an adverse judgment he has appealed. The applicable principle has been stated in Brown v. United States, 5 Cir., 1958, 256 F.2d 151, where the factual situation cannot be distinguished from the case before us. It was there held that consecutive sentences, whether by the same or different federal courts, would be aggregated in determining whether a prisoner was eligible to be considered for parole. It follows that the judgment of the district court is