Before DUFFY, Chief Judge, and MAJOR and LINDLEY, Circuit Judges.
Defendant was sentenced in 1931 by the Circuit Court of Iroquois County, Illinois, to imprisonment in the Illinois State Penitentiary for a period of 32 years by one sentence, and for a period of 1 year to life by another sentence, the court directing that said sentences be served concurrently.
Later, on November 23, 1931, defendant was arraigned in the United States District Court for the Northern District of Illinois, Eastern Division, on indictments returned in Cases Nos. 23551, 23552 and 23553. In Case No. 23551 the Court sentenced defendant to be confined in a federal penitentiary for ten (10) years on Count one, for five (5) years on Count two and for two (2) years on Count three of the indictment, sentences "* * * to run concurrently with each other and to run consecutively with and follow sentence imposed in the State Court." Similar sentences were imposed in Cases Nos. 23552 and 23553.
On June 23, 1947 defendant petitioned the United States District Court for the Northern District of Illinois, Eastern Division, to vacate the sentences imposed by that Court on November 23, 1931. The Court appointed counsel to represent defendant and issued a writ of habeas corpus ad prosequendum, directing that the Warden of the Illinois State Penitentiary produce the defendant in court. This was done.
On October 6, 1947, the Court, largely on the basis of our decision in United States ex rel. Chasteen v. Denemark, etc., 7 Cir., 138 F.2d 289, determined that the sentence imposed in Case No. 23551 was lacking in certainty and definiteness and should be and was vacated. Because the sentences in Cases Nos. 23552 and 23553 depended upon the sentence in Case No. 23551, they were likewise vacated. Thereupon the Court imposed the following sentence:
"Ordered by the Court and is the sentence and judgment of the court upon the plea of guilty so interposed herein as aforesaid that the defendant Joseph Jazorek alias Joseph Jazorak be committed to the custody of the Attorney General of the United States or his duly authorized representative for and during a period of ten (10) years on Count one and for a period of five (5) years on Count 2, sentences on said counts to run concurrently with each other."
It will be noted that the sentence thus imposed was exactly the same as had been imposed in November, 1931, except all reference to the State Court sentences was eliminated.
On July 21, 1953, defendant was released from the Illinois State Penitentiary and was delivered to the custody of the United States Marshal; he was incarcerated in the United States Penitentiary at Leavenworth, Kansas, where he still is confined.
On February 10, 1955 defendant filed a motion in the District Court pursuant to Title 28 U.S.C.A. § 2255 to vacate the sentences imposed on him on October 6, 1947. This motion was denied and this appeal followed. It is the contention of the defendant that his federal court sentence commenced to run on October 6, 1947, the date when he was re-sentenced in that court. It is the position of the government that the federal sentence commenced to run on July 21, 1953, the date when defendant was released from state custody and was delivered to the custody of the United States Marshal.
In urging that defendant has now served his federal court sentence, he quotes from 15 Am.Jur., Criminal Law, 126, § 471:
"* * * ordinarily, where a person under sentence for a crime is convicted and sentenced for another offense in a different court, the sentences run concurrently unless the judgment in one stipulates that imprisonment shall commence at the expiration of imprisonment upon the other conviction or a statute provides a different rule."
Defendant also relies upon 15 Am.Jur., Criminal Law, 110, § 449:
"As a general rule, in the absence of statute, the date for the beginning of the service of a term of imprisonment, when not fixed in the sentence and not ...