Powell v. Hunter, 3741.
| Citation | 172 F.2d 330 |
| Decision Date | 19 January 1949 |
| Docket Number | No. 3741.,3741. |
| Parties | POWELL v. HUNTER. |
| Court | United States Courts of Appeals. United States Court of Appeals (10th Circuit) |
Joe T. Powell, pro se.
Eugene W. Davis, Asst. U. S. Atty., of Topeka, Kan. (Lester Luther, U. S. Atty., of Topeka, Kan., on the brief), for appellee.
Before PHILLIPS, Chief Judge, and BRATTON and MURRAH, Circuit Judges.
This is an appeal from an order discharging a writ of habeas corpus.
Three indictments were returned against Powell, the petitioner, in the United States District Court for the Eastern District of Tennessee. The first indictment, No. 7545, contained two counts, one charging a violation of 18 U.S.C.A. § 88 now § 371, and the other a violation of 18 U.S.C.A. § 408a now § 1201. On November 10, 1937, he entered a plea of guilty to each count and was sentenced to imprisonment for 15 years.
The second indictment, No. 4546, charged a violation of 18 U.S.C.A. § 408e now § 1073. On November 12, 1937, he entered a plea of guilty thereto and was sentenced to imprisonment for a period of five years, to run concurrently with the sentence in No. 7545.
The third indictment, No. 7601, charged a violation of 18 U.S.C.A. § 753h now § 751. On November 10, 1937, he entered a plea of guilty thereto and was sentenced to imprisonment for a period of one-half minute, such sentence to commence at the expiration of the sentence in No. 7545.
Under 18 U.S.C.A. § 710 now § 4161,1 petitioner, had he observed the rules of the institution in which he was confined, would have been eligible for conditional release December 6, 1947. The record discloses, however, that while confined in the United States Penitentiary at Atlanta, Georgia, 30 days of his "good time" allowance were forfeited on October 2, 1939, and an additional 730 days were forfeited on May 2, 1945. On December 1, 1947, 200 days of the forfeited "good time" were restored to him.
Petitioner was transferred to the United States Penitentiary at Leavenworth, Kansas, on July 14, 1945. On December 18, 1947, he filed his application for a writ of habeas corpus on the ground that he was unlawfully deprived of his statutory "good time" allowance and was, therefore, illegally detained of his liberty.
At the hearing below, petitioner testified that while confined in the United States Penitentiary at Atlanta, he invented a signaling device which he considered useful to fliers and sailors forced to take to lifeboats and rafts at sea. He requested permission of the warden to send correspondence pertaining to the device out of the prison, and upon refusal by the warden, he colluded with another inmate to send, and did send, uncensored communications out of the prison.
On the charge of smuggling prohibited communications from the prison, petitioner was given a hearing before a prison board consisting of six members. The warden was not a member of such board. The board recommended forfeiture of 730 days of petitioner's statutory "good time," which recommendation was concurred in by the warden.
The trial court found that the prison board had not acted arbitrarily, capriciously, or fraudulently and discharged the writ.
Under the express provision of § 710, supra, a prisoner is entitled to "good time" allowance only where his record shows he has faithfully observed all the rules and has not been subjected to punishment.2 It is a privilege which may be forfeited for a failure faithfully to observe the rules within the meaning of § 710.3 The prison system is under the administration of the Attorney General, 18 U.S.C.A. § 741 now § 4001, and not of the district courts. The court has no power to interfere with the conduct of the prison or its discipline. It may discharge upon habeas corpus only where the...
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...See Graham v. Willingham, 384 F.2d 367 (10th Cir. 1967). Also see Banning v. Looney, 213 F.2d 771 (10th Cir. 1954); Powell v. Hunter, 172 F.2d 330 (10th Cir. 1949). But being fully cognizant that one does not lose all his constitutional rights when he enters a prison, see Cooper v. Pate, 37......
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