Bolduc v. United States

¶3PER CURIAM:

¶4The petitioner in this section 22551 proceeding, Edward William Bolduc, was convicted March 8, 1963, on a plea of guilty for violation of the federal bank robbery statute, 18 U.S.C. §§ 2113(a), (d). March 29, 1963 the district court committed Bolduc to the custody of the Attorney General under 18 U.S.C. § 4208 for a complete study and report to aid the court in imposing a final sentence. The Attorney General furnished his report to the court within the three month period allowed him by section 4208(b). June 27, 1963 the court imposed on Bolduc a final sentence of eight years to run from the date of his section 4208 commitment. Bolduc was not present at this sentencing and received notice of it only through the mail. April 7, 1964 Bolduc petitioned the court under section 2255 to vacate his sentence in light of United States v. Behrens, December. 9, 1963, 375 U.S. 162, 84 S.Ct. 295, 11 L.Ed.2d 224, in which the Court held that it was error to impose a final sentence in the absence of the defendant and his counsel following a commitment under section 4208. April 17, 1964 the district court resentenced Bolduc, again for eight years, to satisfy the requirements of the Behrens case.

¶5Bolduc submitted the section 2255 petition in this action January 6, 1965. He alleges that his post-Behrens sentence was void because it did not come within the three month period provided in section 4208. Bolduc would have the court vacate the underlying judgment as well as the pew sentence imposed upon him. The district court found his petition without merit and denied a hearing.

¶6The petitioner’s only argument is that his statutory and constitutional rights were violated by the court’s failure to impose final sentence within three months of his commitment for study under section 4208. He relies on the requirement in section 4208(b) 2 that “the results of such study … be furnished to the court within three months unless the court grants time, not to exceed an additional three months, for further study.” The petitioner has misread the statute. The proper construction was recently stated by the Tenth Circuit in virtually the same circumstances:

“The only time limitation in the statute pertains to the furnishing of the report. No provision requires the court to act within a certain time after receiving the report. In our opinion action by the court must be within a reasonable time because undue delay would unfairly deprive the defendant of knowledge of the sentence which he *834must serve. The question of reasonableness must be determined on the facts of each case.” 3

¶7We hold that the district court did act within a reasonable time in the circumstances of this case. The petitioner alleges no other infirmities in his sentence or judgment.

¶8The judgment is affirmed.