Joseph Von Atkinson v. Samuel W. Smith, Warden, Utah State Prison, the Attorney General of the State of Utah, Additional

Defendant, warden of the Utah State Prison, appeals from the United States District Court’s order discharging appellee from custody pursuant to a petition for a writ of habeas corpus.

In 1972 appellee was charged with sodomy under the then existing Utah statute which defined sodomy as a single crime with no requirement that force be shown as an element of the crime. Utah Code Ann. § 76-53-22 (1955) (repealed 1973). When appellee ultimately pleaded guilty to this charge in 1974 he was advised that the possible penalty was a term of from three to 20 years in prison. Id. After appellee was…