Charles Wesley Johnson, Appellant, v. United States of America, Appellee, 235 F.2d 459 (5th Cir. 1956)

Appealing from an order¹  denying, upon the considerations and for the reasons stated in it, his motion under Rule 35, Rules of Criminal Procedure, for reduction of sentence, petitioner is here urging upon us that the district judge was wrong in thinking and holding that the motion must be denied as not timely filed, and, therefore, in entering the order appealed from.

Here upon one specification of error,²  the appellant urges upon us that when, as here, a conviction is affirmed by a Court of Appeals and an application is made to the Supreme Court for a writ of certiorari, though the mandate of this court was not stayed but went down, the sixty day time limit within which the district court may reduce the sentence as a matter of grace, does not commence to run unless and until the district court receives notice of an order of the Supreme Court denying certiorari.

To sustain this argument here, he must, and does in effect, contend that the sixty days "after receipt of an order of the Supreme Court denying application for a writ of certiorari" had not commenced to run in his case when he filed his petition for reduction, indeed did not commence to run until the district judge was advised by his petition that the writ had been denied.

The United States points: to Rule 34 of the United States Supreme Court, 28 U.S.C.A., in effect at the time appellant made his application for writ of certiorari, requiring the clerk of that court to forthwith notify the court below and counsel of record; to the fact that in this case the court below was the Court of Appeals from whose order the petition for certiorari was taken; and to the fact that both this court and the petitioner were forthwith notified of the refusal of the writ.

So pointing, it urges upon us that the mandate having gone down and the district court having become thereby reinvested with jurisdiction of the cause, the sixty day period for reduction of sentence commenced to run on Dec. 11, 1953, the day of the receipt of this court's mandate, and that the only effect of the petition for certiorari was to afford the petitioner an additional sixty days from April 5, 1954, when the writ was denied, to apply under the rule for a reduction of his sentence.

We do not agree with the appellee that the petition for certiorari without a stay of mandate prevented the petitioner from applying to the district judge for a reduction of his sentence within the sixty days from the receipt of the mandate, for which the rule provides. We do agree with it, however; that, in the circumstances of this case, the mandate having already gone down, it was not necessary that either the Supreme Court or the Court of Appeals notify the district court of the denial of certiorari; that, within sixty days after notice of denial of the writ had been given to those provided for in the rule, petitioner had the right to apply and that it was incumbent upon him to make his application for the reduction within that time.

The slightest reflection upon the purpose and intent of the rule³  to extend the time within which a sentence may be reduced by providing three sixty day periods after the judgment has become final in the trial court: (1) after the sentence is imposed; (2) after receipt by the district court of the mandate of the Court of Appeals; and (3) within sixty days after an order denying an application for writ of certiorari; shows, we think, that appellant's claim is without substance.

In a case where the applicant for certiorari obtains a stay of the mandate, the mandate will, of course, go down after receipt from the Supreme Court of the order denying the writ and the two sixty day periods provided for, one after receipt of mandate, the other after the denial of a writ of certiorari, while not precisely, will be substantially the same.

In this case, however, because the mandate was not stayed, the two sixty day periods will be separate and distinct, one beginning upon receipt of the mandate, the other upon receipt of notice to the defendant of the order denying the writ.

Petitioner's claim is without merit. The order was right, and it is affirmed.