United States v. William Clinton Gardner

(concurring):

I concur in the result, and I concur in all of the majority’s opinion except the sentence therein which broadly states the following: “The judgment of conviction in the first case was then final.”

I disagree with the quoted sentence, since absent a specific directive under the authority of Rule 2, Fed.R.App. Proc., a judgment of a Court of Appeals is not “final” on the date of the filing of the opinion. See, e. g., those provisions prescribing a period within which a petition for rehearing may be filed in the Court of Appeals or a petition for writ of certiorari filed in the Supreme Court of the United States. Rule 40, Fed.R.App.Proc., 28 U.S.C. § 2101 (c).

Gardner appeals from a denial by the district court of his 28 U.S.C. § 2255 motion. We affirm.

FACTS

Immediately prior to January 15, 1968, appellant was found guilty of violating 18 U.S.C. § 1708 [possession of stolen mail] on five counts and on that day was sentenced to imprisonment for a period of four years on each count, the sentences to run concurrently. The convictions were affirmed by this court on September 3, 1969. Gardner v. United States, 415 F.2d 1139 (CA9 1969).

On October 13, 1969, appellant was again found guilty of violating 18 U.S.C. § 1708 , and sentenced to imprisonment for a period of two years, the sentence to run consecutively to those imposed on January 15, 1968. Appellant was placed in custody on October 13, 1969.

In his first § 2255 motion, appellant argued that at the time he received his *615 second sentence [October 13, 1969], which sentence was to run consecutively to those imposed on January 15, 1968, that the mandate affirming his conviction and sentence of the first trial had not been spread on the district court records. Without citing authority, he then urged that the first sentences being uncertain and indefinite, 1 that the second sentence…

464 F.2d 614 UNITED STATES of America, Petitioner-Appellee, v. William Clinton GARDNER, Respondent-Appellant. No. 72-1144. United States Court of Appeals, Ninth Circuit. July 17, 1972. William Clinton Gardner, in pro. per. William D. Keller, U. S. Atty., Richard J. Trattner, Eric A. Nobels, Asst. U. S. Attys., Los Angeles, Cal., for appellee. Before ELY, KILKENNY and CHOY, Circuit Judges. PER CURIAM: 1 Gardner appeals from a denial by the district court of his 28 U.S.C. Sec. 2255 motion. We affirm. FACTS 2 Immediately prior to January 15, 1968, appellant was found guilty of violating 18 U.S.C. Sec. 1708 [possession of stolen mail] on five counts and on that day was sentenced to imprisonment for a period of four years on each count, the sentences to run concurrently. The convictions were affirmed by this court on September 3, 1969. Gardner v. United States, 415 F.2d 1139 (CA9 1969). 3 On October 13, 1969, appellant was again found guilty of violating 18 U.S.C. Sec. 1708 , and sentenced to imprisonment for a period of two years, the sentence to run consecutively to those imposed on January 15, 1968. Appellant was placed in custody on October 13, 1969. 4 In his first Sec. 2255…