William Eugene SWIFT, Appellant, v. UNITED STATES of America, Appellee, 436 F.2d 390

NEVILLE, District Judge. This is a timely pro se appeal from an order denying defendant’s petition brought under 28 U.S.C. § 2255 to correct a prison sentence of 10 years imposed on him in 1963 for violation of 18 U.S.C. § 2113(a), bank robbery, which statute provides for a maximum penalty of a $5,000 fine or imprisonment for not more than 20 years or both. No mandatory minimum sentence is prescribed. Prior to the date of imposition of his sentence, defendant had been continuously confined in jail for a period of 172 days, for want of bail. He seeks credit against his sentence for these 172 days.

The District Court, Chief Judge Stephenson stated in his order that he had no independent recollection of the circumstances surrounding the sentencing and that a review of the record in the original proceeding did not indicate whether any consideration had been given to presentence incarceration. Administrative credit for presentence custody is established by 18 U.S.C. § 3568, as amended. The 1966 amendment to that statute requires that all time spent in presentence confinement be credited to the petitioner’s sentence, but is applicable only to sentences imposed after its effective date.

At the time petitioner herein received his sentence in 1963 the 1960 amendment to

section 3568 was in effect and read in part: “ * * * The Attorney General shall give any such [convicted] person credit towards service of his sentence for any days spent in custody prior to the imposition of sentence by the sentencing court for want of bail set for the offense under which sentence was imposed where the statute requires the imposition of a minimum mandatory sentence, * * * ” [Emphasis added] The statute under which petitioner was convicted and sentenced does not prescribe a mandatory minimum sentence. Thus petitioner is not entitled to administrative credit under the above § 3568. Noorlander v.

United States, 404 F.2d 603, 604 (8th Cir. 1968). Where the sentence imposed is the statutory maximum, the length of the sentence itself conclusively shows that credit for presentence incarceration was not given. Here, however, the sentence was sufficiently below the statutory maximum to permit the presumption to apply that the sentencing court gave credit therefor.

Petitioner’s contention that under such circumstances a complete evidentiary hearing is required in order to determine whether such credit was in fact given by the sentencing court has no merit and has been determined adversely to him by this court heretofore. Two prior cases decided by this court are controlling. United States v. Whitfield, 411 F.2d 545 (8th Cir. 1969). Noorlander v. United States, supra. The judgment below is affirmed. .

The petition filed with the trial court was styled “Petition for an Order Granting Credit for Time Spent in Pre Sentence Custody for Want of Bail”, but according to petitioner’s own brief (p. 2) “the appeal is now being taken as if the judgment of the district court was entered under the provisions of 28 U.S.C. § 2255, as it properly should have been.” We agree that the petition should be deemed a motion cognizable under § 2255, and we need not rule on whether it could, or should be classified as a motion to correct an illegal sentence under Rule 35 of the Federal Rules of Criminal Procedure.