McGann v. United States

PETITIONER: McGann
RESPONDENT: United States
LOCATION: Fleetwood Paving Co.

DOCKET NO.: 153
DECIDED BY: Warren Court (1958-1962)
LOWER COURT: United States Court of Appeals for the Second Circuit

CITATION: 362 US 214 (1960)
ARGUED: Mar 03, 1960
DECIDED: Mar 21, 1960

Facts of the case

Question

Media for McGann v. United States

Audio Transcription for Oral Argument - March 03, 1960 (Part 1) in McGann v. United States

Audio Transcription for Oral Argument - March 03, 1960 (Part 2) in McGann v. United States

Earl Warren:

You may continue.

Theodore George Gilinsky:

Mr. Chief Justice, may it please the Court.

I think it's important to remember in this particular case that this petitioner has had the opportunity to attack his Maryland sentence a number of times and which he has done and that this had been heard both in Maryland, it has been heard numerous times in the Court of Appeals and the certiorari has been denied here.

Potter Stewart:

And that's been heard on the merits, has it?

Theodore George Gilinsky:

It had been heard on the -- this meritorious problem that he is raising in Maryland about double jeopardy.

Potter Stewart:

That's only the merit of that attack.

Theodore George Gilinsky:

Yes.

That has been heard.

Potter Stewart:

His motion was not dismissed --

Theodore George Gilinsky:

Because of the New York sentence –-

Potter Stewart:

-- or was not -- failed to be considered by any -- by reason of any concurrent sentence in this case.

Theodore George Gilinsky:

Oh no -- no, that's not right.

Let me make it clear.

The very first time he raised it in Maryland, the very first time he raised it in Maryland, and this argument was made because in Maryland you see he also has concurrence sentences.

Potter Stewart:

Imposed by the same trial judge?

Theodore George Gilinsky:

Yes.

In other words, there are three concurrence sentences also in Maryland.

Potter Stewart:

Yes.

Theodore George Gilinsky:

There's a Dyer Act which he has never contested.

There's this five-year sentence and then there's the 20 and the first time he made the argument in Maryland, the judge said to him, “Well, unless you can show that you're going to get released here in Maryland because you have -- you even haven't finish your five year sentence here.”

Potter Stewart:

And he was not attacking that sentence.

Theodore George Gilinsky:

And he was not attacking that sentence and he was not attacking the Dyer Act, but subsequently, he has raised in Maryland -- a number of times in Maryland the problem of the duplication as he would call of offenses here to which he had pled and this can be raised both there and then subsequently in the Court of Appeals, he has had lawyers appointed.

As a matter of fact, in the -- just the Maryland litigation, he has had a total five of lawyers representing him at various stages so that -- that Maryland part and that is the problem by the way which is also here again pending and now under the label of coram mobis that it is exactly the same thing which he had -- that's pending in this Court, a petitioner's pending in this Court, but he had previously raised the same thing under 2255 and certiorari.

How long?

(Inaudible)

Theodore George Gilinsky:

No.

It was filed I believe, it was filed November 16, 1959.

We filed a memorandum in that case because we do not think it was properly handled below on another unrelated problem.

How long was he exactly sentenced?

Theodore George Gilinsky:

He was first sentenced in 1954 of August.