"It was appellant's contention that the words `consecutively' and `with' were incompatible with each other, and that such an ambiguity was therefore created as legally to require that all of the sentences against him be accorded concurrent operation. "We have held in a corresponding situation that `the use of the expression "to run consecutively with" could [not] reasonably be regarded as having any other natural or contextual meaning in the situation than "consecutive to"'. Young v. United States, 8 Cir., 274 F.2d 698, 702, affirmed [ 366 U.S. 761] 81 S.Ct. 1670, [ 6 L.Ed.2d 853]. See also Fulton v. United States, 5 Cir., 250 F.2d 281; Payne v. Madigan, 9 Cir., 274 F.2d 702, affirmed [ 366 U.S. 761], 81 S.Ct. 1670 [ 6 L.Ed.2d 853].
An oral sentence which leaves uncertainty as to the amount of time to be served is ambiguous but not so ambiguous as to be illegal. See Payne v. Madigan, 274 F.2d 702, 704-05 (9th Cir. 1960), aff'd, 366 U.S. 761, 81 S.Ct. 1670, 6 L.Ed.2d 853 (1961). Garcia's oral sentence is ambiguous as to the time to be served before becoming eligible for parole, but it is not illegal.
Young's attack on his conviction and sentence is one of many 2255 motions we have considered. Young v. United States, 228 F.2d 693 (8th Cir.), cert. denied, 351 U.S. 913, 76 S.Ct. 704, 100 L.Ed. 1447 (1956); 246 F.2d 901 (8th Cir. 1957), cert. denied, 355 U.S. 917, 78 S.Ct. 348, 2 L.Ed.2d 277 (1958); 259 F.2d 641 (8th Cir. 1958), cert. denied, 359 U.S. 917, 79 S.Ct. 595, 3 L.Ed.2d 579 (1959); 274 F.2d 698 (8th Cir. 1960), aff'd sub nom. Payne v. Madigan, 366 U.S. 761, 81 S.Ct. 1670, 6 L.Ed.2d 853 (1961); 300 F. Supp. 373 (D.N.D. 1969), aff'd 423 F.2d 677 (8th Cir.), cert. denied, 399 U.S. 915, 90 S.Ct. 2221, 26 L.Ed.2d 574 (1970). The trial court in this case determined that petitioner's claims were based essentially on the same grounds previously raised and denied by this Court.
F.R.Crim.P. 32(b), 43. Henley v. Heritage, 337 F.2d 847, 848 (5th Cir. 1964); Cuozzo v. United States, 340 F.2d 303, 304 (5th Cir. 1965); Payne v. Madigan, 274 F.2d 702, 704 (9th Cir. 1960), aff'd by an equally divided court 366 U.S. 761, 81 S.Ct. 1670, 6 L.Ed.2d 853 (1961). See also Kennedy v. Reid, supra note 28.
" The idea put forward by the petitioner and adopted by the court, that the use of "with" instead of "to" makes the order ambiguous and renders it ineffective, will not do.Hiatt v. Ellis , 192 F.2d 119, 120 (5th Cir.1951) ; see also Rakes v. United States , 309 F.2d 686, 688 (4th Cir.1962) (holding that, despite the use of the word "with," the sentencing language was not ambiguous); Young v. United States , 274 F.2d 698, 702 (8th Cir.1960), aff'd , Payne v. Madigan , 366 U.S. 761, 81 S.Ct. 1670, 6 L.Ed.2d 853 (1961) (same); Martin v. United States , 285 F.2d 150, 151 (10th Cir.1960) (same). The Court agrees with this reasoning—consecutive means consecutive, and concurrent means concurrent, regardless of which preposition follows.
" The idea put forward by the petitioner and adopted by the court, that the use of "with" instead of "to" makes the order ambiguous and renders it ineffective, will not do.Hiatt v. Ellis , 192 F.2d 119, 120 (5th Cir.1951) ; see also Rakes v. United States , 309 F.2d 686, 688 (4th Cir.1962) (holding that, despite the use of the word "with," the sentencing language was not ambiguous); Young v. United States , 274 F.2d 698, 702 (8th Cir.1960), aff'd , Payne v. Madigan , 366 U.S. 761, 81 S.Ct. 1670, 6 L.Ed.2d 853 (1961) (same); Martin v. United States , 285 F.2d 150, 151 (10th Cir.1960) (same). The Court agrees with this reasoning—consecutive means consecutive, and concurrent means concurrent, regardless of which preposition follows.
In at least two more recent cases, courts appear to have entertained § 2241 petitions challenging the application of sentences as they were orally pronounced. In Payne v. Madigan, 274 F.2d 702 (9th Cir. 1960), aff'd by equally divided Court, 366 U.S. 761 (1961) (per curiam), a defendant convicted in the United States District Court for the Eastern District of Tennessee and imprisoned in California sought habeas relief by arguing that the J Cs imposing seven consecutive prison terms were not supported by an unambiguous explanation during the oral pronouncement of his sentence. Id. at 703-04.
For the chronology and results of the prior attacks see Young v. United States, 228 F.2d 693 (8th Cir. 1956), cert. denied 351 U.S. 913, 76 S.Ct. 704, 100 L.Ed. 1447; 246 F.2d 901 (8th Cir. 1957), cert. denied 355 U.S. 917, 78 S.Ct. 348, 2 L.Ed.2d 277; 259 F.2d 641 (8th Cir. 1958), cert. denied 359 U.S. 917, 79 S.Ct. 595, 3 L.Ed.2d 579; 274 F.2d 698 (8th Cir. 1960), aff. Payne v. Madigan, 366 U.S. 761, 81 S.Ct. 1670, 6 L.Ed.2d 853. In his present motion, filed pursuant to 28 U.S.C.A. § 2255, petitioner contends:
See 24 C.J.S. Criminal Law § 1581, and cases there cited. Neither does it prevent the prisoner from being required to serve the second sentence after the termination of the first sentence. Young v. United States, 8 Cir., 274 F.2d 698, affm'd Payne v. Madigan, 366 U.S. 761, 81 S.Ct. 1670, 6 L.Ed.2d 853; Bledsoe v. Johnston, 9 Cir., 154 F.2d 458, certiorari denied, 328 U.S. 872, 66 S.Ct. 1367, 90 L.Ed. 1642; Martini v. Johnston, 9 Cir., 103 F.2d 597, certiorari denied, 307 U.S. 642, 59 S.Ct. 1045, 83 L.Ed. 1522. The judgments entered in this case clearly reveal the intent of the court to impose cumulative sentences to be served consecutively and not concurrently. Defendant's contention that the ten year sentence "is in excess of the maximum term under Missouri law" is also without merit.
ral statement is itself plain and unambiguous and where it conflicts with an equally plain written judgment or commitment. See, e.g., U.S. v. Villano, 816 F.2d 1448, 1450-51 (10th Cir. 1987), where the court upheld the established rule that an unambiguous oral pronouncement of sentence controls when there is a conflict between it and a written order of commitment. Other cases recognizing the rule include: United States v. Pagan, 785 F.2d 378, 380 (2d Cir. 1986), cert. denied, 479 U.S. 1017 (1986); United States v. Moyles, 724 F.2d 29, 30 (2d Cir. 1983); Schurmann v. United States, 658 F.2d 389, 391 (5th Cir. 1981); United States v. Mason, 440 F.2d 1293, 1299-1300 (10th Cir. 1971), cert. denied sub nom. Edwards v. United States, 404 U.S. 883 (1971); Scott v. United States, 434 F.2d 11, 20 (5th Cir. 1970); Baca v. United States, 383 F.2d 154, 157 (10th Cir. 1967), cert. denied, 390 U.S. 929 (1968); Payne v. Madigan, 274 F.2d 702, 704 (9th Cir. 1960), aff'd by an equally divided court, 366 U.S. 761 (1961); Watkins v. Merry, 106 F.2d 360, 361 (10th Cir. 1939). When the oral pronouncement is ambiguous, however, the result is just the opposite.