Appeal from the United States District Court for the Eastern District of Wisconsin. No. 75-C-328 Myron L. Gordon, Judge.
Tom C. Clark, Associate Justice,*fn* Castle, Senior Circuit Judge, and Campbell, Senior District Judge.*fn** Campbell, dissenting in part.
Castle, Senior Circuit Judge.
In this appeal, petitioner Frank J. Faye, Jr., seeks our reversal of the district court's dismissal of his petition for writ of habeas corpus. In his petition, Faye argues that the circuit court for Milwaukee County, Wisconsin, violated his rights under the fifth and fourteenth amendments to the United States Constitution by failing to credit 176 days of pre-sentence confinement when the court sentenced him to two concurrent seven-year terms for two counts of rape.
Petitioner was arrested on July 7, 1971, in York, Nebraska. On July 9, 1971, he was transported to Omaha, Nebraska, and remained in jail there pending extradition to Wisconsin. Bond was set at $10,000.00 at a hearing on August 14, 1971. Petitioner was financially unable to post the bond and remained in the custody of the Nebraska officials until September 1, 1971, when he was extradited to Milwaukee, Wisconsin. On September 2, 1971, bail was set in Wisconsin at $10,000.00 and petitioner was again unable to post bond and hence remained in custody in the Milwaukee County Jail until his conviction on two counts of rape on November 16, 1971. After conviction, petitioner was incarcerated at the Wisconsin Central State Hospital for pre-sentence examination to determine the need for specialized treatment under the Wisconsin Sex Crimes Act. Petitioner remained in the hospital until January 11, 1972, when he was returned to the Milwaukee County Jail to await sentencing. On January 18, 1972, petitioner was sentenced to two concurrent terms of seven years on two counts of rape. Each rape conviction carried a possible maximum sentence of 30 years under Wisconsin law.
Petitioner subsequently filed a pro se motion in the sentencing court for reduction in sentence to reflect credit for his period of pre-sentence confinement. The sentencing judge denied the motion.
Petitioner thereupon filed a petition for a writ of habeas corpus in the district court, alleging that the circuit court's refusal to credit his pre-sentence period of confinement was unconstitutional. The district court dismissed the petition on the ground that the guarantee against double jeopardy is not violated where the period of pre-sentence confinement and the sentence imposed together do not exceed the statutory maximum penalty allowed for the offense. In response to petitioner's argument that his right to equal protection of the laws was violated by the sentencing court's refusal to credit the period of pre-sentence confinement occasioned by his financial inability to post bond, the court held that where such period of pre-sentence confinement together with the sentence imposed is less than the statutory maximum penalty for the offense, a presumption arises that the sentencing judge in fact has credited the pre-sentence time in sentencing the petitioner. And, the court held, petitioner had failed to rebut that presumption in the instant case. Petitioner thereupon appealed to this court.
Relying on North Carolina v. Pearce, 395 U.S. 711, 23 L. Ed. 2d 656, 89 S. Ct. 2072 (1969), petitioner argues that the fifth amendment's guarantee against double jeopardy requires the crediting of the entire period of pre-sentence confinement against his sentence in the instant case. We disagree.
The Supreme Court in Pearce stated that a prohibition against multiple punishments for the same offense is implicit in the ban against double jeopardy. Id. at 717. The Court found this prohibition violated "when the punishment already exacted for an offense is not fully "credited " in imposing sentence upon a new conviction for the same offense." Id. at 718. This logic of Pearce, petitioner contends, mandates that credit be given for pre-sentence confinement so that a defendant is not subjected to "double punishment" for one offense.
Courts, however, have only taken the teaching of Pearce so far as to hold that a failure to credit violates the guarantee against double jeopardy when the pre-sentence time together with the sentence imposed is greater than the statutory maximum penalty for the offense. See, e. g., Culp v. Bounds, 325 F. Supp. 416, 419 (W.D.N.C. 1971); Parker v. Bounds, 329 F. Supp. 1400 (E.D.N.C. 1971); Taylor v. Gray, 375 F. Supp. 790 (E.D. Wis. 1974). Only in such a situation is there "double punishment" for one offense. Where the pre-sentence time and the sentence imposed together are less than the statutory maximum penalty, no grounds exist for finding "double punishment," because the total time of incarceration will fall within the single maximum period of punishment set by the legislature. Hence, petitioner's argument based on the double jeopardy clause of the fifth amendment must fail since the 176 days of pre-sentence confinement and the two concurrent seven-year sentences together are far less than the maximum punishment of 60 years which he could have received.
Petitioner's second argument is that the equal protection clause of the fourteenth amendment requires the crediting of the pre-sentence confinement period of August 14, 1971, to November 16, 1971, against the sentence imposed by the circuit court because this period of confinement was a result of petitioner's financial inability to post the requisite bond.
Several courts have held that it is a denial of equal protection not to credit pre-sentence confinement resulting from inability to post bond where the period of pre-sentence confinement together with the sentence imposed exceeds the statutory maximum penalty allowed for the offense. See, e. g., Parker v. Estelle, 498 F.2d 625 (5th Cir. 1974); Hook v. Arizona, 496 F.2d 1172 (9th Cir. 1974); Hill v. Wainwright, 465 F.2d 414 (5th Cir. 1971). The source of these decisions is the Supreme Court's opinions in Williams v. Illinois, 399 U.S. 235, 26 L. Ed. 2d 586, 90 S. Ct. 2018 (1970), and Tate v. Short, 401 U.S. 395, 28 L. Ed. 2d 130, 91 S. Ct. 668 (1971). The Court in Williams struck down Illinois' practice of incarcerating beyond the maximum term those individuals unable to pay a fine. As the Court there noted, "the Equal ...