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SUTTON v. STATE OF MD.

No. 88-6619.

886 F.2d 708 (1989)

Clarence J. SUTTON, Petitioner-Appellee, v. STATE OF MARYLAND; Maryland House of Correction, Respondents-Appellants.

United States Court of Appeals, Fourth Circuit.

Decided October 2, 1989.

Attorney(s) appearing for the Case

Jillyn Kaberle Schulze (J. Joseph Curran, Jr., Atty. Gen., and Mary Ellen Barbera, Asst. Atty. Gen., Baltimore, Md., on brief) for respondents-appellants.

Steven H. Goldblatt, Director, Bethesda, Md. (Dori K. Bernstein, Maureen F. Del Duca, Supervising Attys., Laurin Mills, Catherine Pinkerton, Student Counsel, Appellate Litigation Program, Georgetown University Law Center, on brief), for petitioner-appellee.

Before ERVIN, Chief Judge, and WINTER, RUSSELL, WIDENER, HALL, PHILLIPS, MURNAGHAN, SPROUSE, CHAPMAN, WILKINSON and WILKINS, Circuit Judges, sitting en banc.

CHAPMAN, Circuit Judge:

The district court granted a writ of habeas corpus to Clarence J. Sutton, who has been convicted under the Maryland law of common assault, to the extent that his fifteen-year sentence exceeded ten years. Although no Maryland statutory assault was charged, the district court used the least aggravated form of statutory assault, that of assault with intent to maim, disfigure or disable, which has a maximum penalty of ten years, as the standard...

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