Donald R. Ham v. State of North Carolina v. Lee Bounds, Prison Dir., 471 F.2d 406 (4th Cir. 1973). · Go Syfert
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Donald R. Ham v. State of North Carolina v. Lee Bounds, Prison Dir., 471 F.2d 406 (4th Cir. 1973). Cases Citing This Book View Copy Cite
72 citation events (6 in the last 25 years) across 25 distinct courts.
Strongest positive: Jason Clem v. Leslie Fleming (ca4, 2016-10-19)
Treatment trajectory · 1973 → 2026 · click a year to view as-of
1973 1999 2026
Top citers, strongest first. 20 distinct citers. How cited ↗
discussed Cited as authority (rule) Jason Clem v. Leslie Fleming (2×)
4th Cir. · 2016 · confidence medium
Ham v. North Carolina, 471 F.2d 406, 407 (4th Cir. 1973).
cited Cited as authority (rule) Buncie v. Department of Corrections
N.J. Super. Ct. App. Div. · 2005 · confidence medium
Johnson v. Prast, 548 F.2d 699, 700 (7th Cir.1977); Ham v. North Carolina,, 471 F.2d 406, 407 (4th Cir.1973); United States v. Gaines, 449 F.2d 143, 144 (2d Cir. 1971).
cited Cited as authority (rule) James Benjamin Davis, Jr. v. Franklin E. Freeman, Jr.
4th Cir. · 1996 · confidence medium
Ham v. North Carolina, 471 F.2d 406, 407 (4th Cir.1973). 3 Davis has attempted to demonstrate such capriciousness through an Equal Protection Clause claim.
cited Cited as authority (rule) Davis v. Freeman
4th Cir. · 1996 · confidence medium
Ham v. North Carolina, 471 F.2d 406, 407 (4th Cir. 1973).
discussed Cited as authority (rule) Paul Luna Vasquez v. Thomas Cooper (2×)
10th Cir. · 1988 · confidence medium
He still must serve a longer term in connection with the offense than .would a wealthier prisoner who is sentenced to the same term but who is able to meet bail to avoid incarceration before trial and sentencing.” Accord Ham v. North Carolina, 471 F.2d 406, 407, 408 (4th Cir.1973); Johnson v. Riveland, 620 F.Supp. 1425, 1426 (D.Colo.1985), vacated on other grounds, 855 F.2d 1477 (10th Cir.1988); Godbold v. Wilson, 518 F.Supp. 1265, 1268-69 (D.Colo.1981); Durkin v. Davis, 390 F.Supp. 249, 253-54 (E.D.Va.1975), dismissed on other grounds, 538 F.2d 1037 (4th Cir.1976); Mohr v. Jordan, 370 F.Sup…
cited Cited as authority (rule) Carmen Labruna v. U. S. Marshal, Western District of New York, and Attorney General of the State of New York
2d Cir. · 1981 · confidence medium
Mercado v. Carey, 420 U.S. 925 , 95 S.Ct. 1120 , 43 L.Ed.2d 394 (1975); Ham v. North Carolina, *443 471 F.2d 406, 407-08 (4th Cir. 1973).
examined Cited as authority (rule) Godbold v. Wilson (3×) also: Cited "see, e.g."
D. Colo. · 1981 · confidence medium
Johnson v. Prast, 548 F.2d 699, 702 (7th Cir. 1977); King v. Wyrick, 516 F.2d 321, 325 (8th Cir. 1975); Ham v. North Carolina, 471 F.2d 406, 408 (4th Cir. 1973); United States v. Gaines, 449 F.2d 143 (2nd Cir. 1971) (per curiam). 12 In contrast, only one circuit has held that there is no constitutional right to credit for pre-sentence confinement where the total confinement is less than the maximum allowed.
cited Cited as authority (rule) In re the Personal Restraint of Quinlivan
Wash. Ct. App. · 1978 · confidence medium
E.g., Hook v. Arizona, 496 F.2d 1172 (9th Cir. 1974); Ham v. North Carolina, 471 F.2d 406, 408 (4th Cir. 1973); Hart v. Henderson, 449 F.2d 183, 185 (5th Cir. 1971).
discussed Cited as authority (rule) Porter v. Leeke
D.S.C. · 1978 · confidence medium
In view of the recent reaffirmation of this view by the highest court in this state, it would appear to serve no purpose to “require the doing of a futile act, and if it is obvious that the state courts will afford no relief, a petitioner is not obligated to go through a needless state court proceeding”, Ham v. State of North Carolina, 471 F.2d 406, 407 (4th Cir. 1973).
discussed Cited as authority (rule) William Stubbs v. H. J. Smith, Superintendent, Attica Correctional Facility
2d Cir. · 1976 · confidence medium
It is true, and appellant concedes, that greater emphasis was placed in the court below on the context of the codefendant’s plea than has been placed here; the State itself concedes, however, that appellant’s assigned counsel urged the district court that “the use of the presumption of possession in [appellant’s] case was prejudicial and in violation of his constitutional right to due process of law.” In light of the substance of appellant’s pro se petition, see Ham v. North Carolina, 471 F.2d 406, 407 (4th Cir. 1973), and the language of Judge Curtin’s consideration of appellant…
cited Cited as authority (rule) Laden v. Warden
Conn. · 1975 · confidence medium
Ham v. North Carolina, 471 F.2d 406, 408 (4th Cir.); Taylor v. Gray, 375 F. Sup. 790, 792 (E.D.
discussed Cited as authority (rule) Samuel Gee v. Director, Patuxent Institution
4th Cir. · 1975 · confidence medium
The principle of exhaustion “does not require the doing *816 of a futile act,” Ham v. State of North Carolina, 471 F.2d 406, 407 (4th Cir. 1973), and it appears obvious to us that any petition Gee were to file under the UPCPA seeking the relief he requests here would be dismissed under the rule of Knox .
cited Cited as authority (rule) Durkin v. Davis
E.D. Va. · 1975 · confidence medium
Ham v. North Carolina, 471 F.2d 406, 408 (4th Cir. 1973) (Russell, J.); Mohr v. Jordan, 370 F.Supp. 1149, 1152-54 (D.Md.1974), aff’d.
discussed Cited "see" Francis v. State of Md.
D. Maryland · 1978 · signal: see · confidence high
See Ham v. North Carolina, 471 F.2d 406, 407-08 (4th Cir. 1973); Perry v. Blackledge, 453 F.2d 856 (4th Cir. 1971). *167 Petitioner correctly points out that the need for a three-judge court should be considered.
cited Cited "see" Earl Anderson Franklin v. French Conway
4th Cir. · 1976 · signal: see · confidence high
See Ham v. North Carolina, 471 F.2d 406 (4 Cir. 1973); Perry v. Blackledge, 453 F.2d 856 (4 Cir. 1971).
discussed Cited "see" Arthur Jackson, Jr. v. State of Alabama, Jasper Lee Cooks v. Circuit Court of Mobile County (2×)
5th Cir. · 1976 · signal: see · confidence high
See Ham v. North Carolina, 4 Cir. 1973, 471 F.2d 406 ; Mott v. Dail, E.D.N.C.1972, 337 F.Supp. 731 , appeal dismissed, 4 Cir. 1973, 473 F.2d 908 .
cited Cited "see" Thomas v. Muncy
W.D. Va. · 1976 · signal: accord · confidence high
Accord, Ham v. North *737 Carolina, 471 F.2d 406, 407-8 (4th Cir. 1973).
discussed Cited "see, e.g." Cooper v. State
Fla. Dist. Ct. App. · 1980 · signal: see also · confidence low
Matthews v. Dees, 579 F.2d 929 (5th Cir. 1978) (held petitioner entitled to credit for portion of pre-sentence confinement so that total incarceration would not exceed twenty years, where petitioner was sentenced to nineteen years, twenty years being the maximum); see also Ham v. State of North Carolina, 471 F.2d 406 (4th Cir. 1973).
discussed Cited "see, e.g." Anglin v. State (2×)
Nev. · 1974 · signal: see also · confidence low
See also Ham v. North Carolina, 471 F.2d 406 (4th Cir. 1973), and Mott v. Dail, 337 F.Supp. 731 (E.D.N.C. 1972), appeal dismissed, 473 F.2d 908 (4th Cir. 1973).
cited Cited "see, e.g." Smith v. State
Ark. · 1974 · signal: see, e.g. · confidence low
See, e.g., Ham v. North Carolina, 471 F. 2d 406 (4th Cir. 1973).
Retrieving the full opinion text from the archive…
Donald R. HAM, Appellant,
v.
STATE OF NORTH CAROLINA, v. Lee Bounds, Prison Director, Et Al., Appellees
71-1104.
Court of Appeals for the Fourth Circuit.
Jan 11, 1973.
471 F.2d 406
William T. Toal, School of Law, University of South Carolina, Greenville, S. C., Court-appointed counsel, on brief, for appellant., Robert Morgan, Atty. Gen., of North Carolina, and Jacob L. Safron, Asst. Atty. Gen., of North Carolina, on brief, for appellees.
Boreman, Winter, Russell.
Cited by 60 opinions  |  Published
RUSSELL, Circuit Judge:

In 1959 the petitioner, a North Carolina state prisoner, pled guilty to second-degree murder and received an indeterminate sentence of 25 to 30 years, [1] later commuted by the Governor of that State to one of 20 to 25 years. After he had begun service of this sentence and been granted parole on two occasions (revoked for cause in each instance), he filed in the state courts a post-conviction relief application, in which he contended that he was constitutionally entitled to “credit” on his sentence for time of parole, and that he was also entitled to special “gain time” for labor in a “permanent extra work position” during his confinement. Both claims were denied in the state courts and petitioner filed for habeas relief in the district court. The petition was dismissed without a hearing and this appeal followed.

The dismissal by the district court of the two claims originally asserted in the state courts was proper. It has consistently been held that a prisoner is not entitled to credit for parole time, Hamrick v. Peyton, 349 F.2d 370 (4th Cir., 1965), and cases cited id., at 372. The claim for “gain time” is somewhat more complex. The petitioner does not contend that he was denied “gain time”, but that the differentiation in “gain time” allowances for farm labor and kitchen labor is improper, and that, though he worked on the prison farm, he was entitled to the more generous provisions for “gain time” on account of kitchen work. However, the grades established for “gain time” based on differences in work assignment are matters of prison administration, to be disturbed, as the district court correctly observed, only if clearly arbitrary or capricious, see Kelly v. North Carolina, 276 F.Supp. 200, 210 (E.D.N.C.1967). There is no basis for the claim of arbitrariness involved here. Under such circumstances, petitioner’s claim for increased “gain time” is without merit.

The petitioner raised obliquely in the district court a third claim, which was not passed on by that court. This omission is understandable. After the petition was filed, the district court found it indefinite and granted the petitioner leave to amplify his allegations. In elaborating on his original claims, the petitioner appended at the end of his amended petition, almost as an afterthought it might seem, his claim for credit for pre-sentence confinement. The district court apparently overlooked this new claim and did not consider it. We are of the opinion, however, that it was adequately presented so as to command consideration. After all, pro se petitions are to be viewed with great liberality, looking to the attainment of full justice.

Ordinarily this new claim, first asserted in the district court, would be subject to dismissal for failure to exhaust state remedies. Exhaustion, however, does not require the doing of a futile act, and if it is obvious that the state courts will afford no relief, a petitioner is not obligated to go through a needless state court proceeding. That is the situation here. The courts of North Carolina have authoritatively held that[*408] petitioner’s claim is meritless under both state law and the federal Constitution, State v. Walker, 277 N.C. 403, 177 S.E.2d 868 (1970); State v. Virgil, 276 N.C. 217, 172 S.E.2d 28 (1970). The state legislature, some months following the district court’s dismissal of the prisoner’s petition, however, provided by statute [2] for credit for pre-sentence jail time in all eases tried subsequent to the effective date of the act. The statute by its specific language affords petitioner no relief, as his trial occurred long prior to its effective date. The attempt to limit the statute to a prospective application, though, is palpably unconstitutional, see Mott v. Dail, 337 F.Supp. 731 (E.D.N.C.1972); contra, Pinyatello v. State, 14 N.C.App. 706, 189 S.E.2d 574 (1972); see also, Cole v. North Carolina, 419 F.2d 127 (4th Cir. 1965). The state has suggested that we should defer any decision on this aspect of the statute and require the petitioner to litigate the issue in the state courts. We decline so to do, especially under the circumstances of this case, where, if petitioner is entitled to relief, it could mean his almost immediate release. [3]

Moreover, it is to be assumed that petitioner was at the time of his arrest without the means to provide bail, if allowed in a reasonable amount. This indigency, it is true, is not definitely shown in the record, but his petition in this court is supported by an oath of indigency, and it may be presumed he was similarly circumstanced when arrested. Given this, for the reasons so well stated by the district court in a similar case decided a few months after the petitioner’s, the petitioner is entitled to credit for his pre-sentence confinement. Culp v. Bounds, 325 F.Supp. 416 (W.D.N.C. 1971). See also, Parker v. Bounds, 329 F.Supp. 1400 (E.D.N.C.1971); Workman v. Cardwell, 338 F.Supp. 893 (N.D. Ohio, 1972). The case is accordingly remanded with instruction to the district court that petitioner be given credit for his pre-sentence confinement.

Affirmed in part and remanded in part.

1

. The maximum sentence established by North Carolina law for this offense is 30 years, N.C.G.S. 14-17.

3

. The record gives as petitioner’s earliest eligible release date July 3, 1973. Petitioner claims he was confined for six months prior to sentencing.