Roy Allen Cloud, Appellant, v. State of Louisiana, Appellee, 397 F.2d 252 (5th Cir. 1968)

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US Court of Appeals for the Fifth Circuit - 397 F.2d 252 (5th Cir. 1968) June 19, 1968

Roy Allen Cloud, pro se.

Teddy W. Airhart, Jr., Asst. Atty. Gen., Baton Rouge, La., for appellee.

Before COLEMAN, AINSWORTH and DYER, Circuit Judges.


On December 11, 1963, the appellant was convicted in the Louisiana Courts of the crime of armed robbery. He was sentenced to prison for fifteen years. Later, he received a seven year sentence for an aggravated escape, to be served consecutively to the armed robbery sentence.

The District Court denied a habeas corpus petition attacking the armed robbery conviction because the action thereon would not result in the release of the petitioner, McNally v. Hill, 293 U.S. 131, 55 S. Ct. 24, 79 L. Ed. 238 (1934).

On May 20, 1968, the Supreme Court overruled McNally and held "that a prisoner serving consecutive sentences is `in custody' under any one of them for purposes of § 2241(c) (3) [28 U.S.C.]", Peyton v. Rowe, 391 U.S. 54, 88 S. Ct. 1549, 20 L. Ed. 2d 426.

Therefore, the judgment of the District Court must be reversed and remanded for further proceedings not inconsistent with Peyton.

Reversed and remanded.