Application of Lyle Nelson for a Writ of Habeas Corpus , 445 F.2d 631 ( 1971 )

445 F.2d 631

Application of Lyle NELSON for a Writ of Habeas Corpus.

No. 20232.

United States Court of Appeals, Eighth Circuit.

July 1, 1971.

Before MATHES, Chief Judge, VAN OOSTERHOUT and BRIGHT, Circuit Judges.

ORDER

PER CURIAM.

1

Appellant Lyle Nelson seeks release from the federal penitentiary on the basis that he has completed service of his sentence. He requests that he be given credit against his three-year federal sentence for approximately twenty-eight months spent in a county jail and state prison within South Dakota. Initially, the district court, Judge Beck, refused to grant the requested credit, and we affirmed. Application of Nelson, 434 F.2d 748 (8th Cir. 1970). After our decision, Lyle Nelson filed a petition for certiorari with the Supreme Court of the United States. Upon the suggestion of the Solicitor General, the Supreme Court granted the writ, vacated the judgment, and remanded the case to this court for reconsideration in the light of the Solicitor General's position, as asserted in a memorandum to the Supreme Court. Nelson v. United States, 402 U.S. 1006, 91 S.Ct. 2193, 29 L.Ed.2d 428, (June 1, 1971).1

2

The issue upon which the Solicitor General recommended vacation of the judgment was not raised by the appellant in either the trial court or this court and, hence, received no consideration by such courts. No relevant fact-finding was made upon such issue. In conformity with the Supreme Court's mandate, we remand this case to the district court for appropriate fact-finding and determination. Either party should be afforded opportunity to offer evidence on this issue raised by the Solicitor General.

3

We grant appellant's motion for release upon bond and order him released forthwith from incarceration upon his personal recognizance, subject to such further directions or orders in relation thereto as the district court may deem appropriate.

4

Let new mandate in this case issue forthwith.

APPENDIX

5

The motion for leave to proceed in forma pauperis is granted. Pursuant to the suggestion of the Solicitor General, the petition for a writ of certiorari is granted, the judgment is vacated, and the case is remanded to the United States Court of Appeals for the Eighth Circuit for reconsideration in light of the position asserted by the Solicitor General in the Memorandum for the United States. The application for bail in this case is also referred to the United States Court of Appeals for the Eighth Circuit.

Notes:

1

A copy of this memorandum is appended