216 F.2d 735 (9th Cir. 1954), 14236, Van Buskirk v. Wilkinson

Docket Nº:14236.
Citation:216 F.2d 735
Party Name:Odis R. VAN BUSKIRK, Appellant, v. Fred T. WILKINSON, as Warden of the United States Penitentiary, McNeil Island, Washington, Appellee.
Case Date:November 08, 1954
Court:United States Courts of Appeals, Court of Appeals for the Ninth Circuit

Page 735

216 F.2d 735 (9th Cir. 1954)

Odis R. VAN BUSKIRK, Appellant,


Fred T. WILKINSON, as Warden of the United States Penitentiary, McNeil Island, Washington, Appellee.

No. 14236.

United States Court of Appeals, Ninth Circuit.

November 8, 1954

Page 736

Odis R. Van Buskirk, in pro. per.

Charles P. Moriarty, U.S. Atty., Seattle, Wash., Guy A. B. Dovell, Asst. U.S. Atty., Tacoma, Wash., for appellee.

Before BONE and FEE, Circuit Judges, and DRIVER, District Judge.

DRIVER, District Judge.

Appellant is an inmate of the United States Penitentiary on McNeil Island, Washington. He petitioned the District Court for an injunction restraining respondent Warden from enforcing against him the Act of Congress which provides for conditional release of Federal prisoners, and for a judgment declaring the Act void for repugnance to the Constitution of the United States. 1 He asked that a three-judge court be convened to hear his petition. 2 His claim for relief was based upon the following factual allegations:

On February 4, 1937, appellant was convicted in a United States District Court and was sentenced to imprisonment for a term of fifteen years which he commenced to serve on the same date. He was conditionally released on parole status on November 19, 1945. On September 15, 1950, he was returned to the penitentiary for service of a new sentence of twenty-seven months. On June 21, 1952, the imprisonment portion of the new sentence was terminated and appellant was served with a 'Conditional Release Violator's Warrant.' He then recommenced service on the original fifteen-year sentence.

On November 8, 1953, appellant had served, in confinement and on parole

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status, a total of fifteen years on his original sentence, not counting the time served upon the new sentence, although he had then served only ten and a fraction years in confinement. He contended that he was entitled to credit for both confinement time and parole time, and that the conditional release statute which required him to serve a second time that part of his sentence served on parole, illegally increased his punishment by enlarging his sentence and violated his constitutional right not to be placed twice in jeopardy for the same offense.

The District Court dismissed the petition without a hearing on the ground that the issues therein raised were without merit. Specifically the court concluded that the petition did not present a substantial Federal question. The present appeal followed.

Our first concern must be the jurisdiction of the District Court. Such courts are empowered to hear and determine only such causes as Congress has by statute provided. 3 And, in the words of Judge Stephens, speaking for this court in Royalty Service Corporation v. City of Los Angeles, 9 Cir., 98 F.2d 551, 553, 'An appellate federal court must, of its own motion and even against the consent or protest of the parties, satisfy itself not only of its own jurisdiction but also of that of the lower court in a cause under review.' (Citing cases.)

The only statutory basis for jurisdiction in the District Court cited by appellant, either in his petition or his brief on appeal, consists of Sections 2282 and 2284 of Title 28 U.S.C.A. 4 The cited sections are not jurisdictional but procedural. They provide that in certain circumstances a District Court must consist of three judges. Necessarily they assume jurisdiction in the court under some other statutory provision. 5 In order for a District Court to have jurisdiction in a case arising under them, there must be both a substantial federal question and the jurisdictional minimum amount in controversy. 6

Appellant petitioned for a declaratory judgment as well as an injunction, it is true, but the Federal Declaratory Judgment Act 7 does not enlarge the jurisdiction of the District Courts. It merely expands their functions in cases or controversies of which they have jurisdiction under other laws. 8

Appellant's petition in the District Court does not contain any allegation whatsoever of any amount in controversy. The omission is fatal if the petition is to be taken for what it purports to be, namely, an application for injunction and declaratory relief in a civil action arising under the Constitution and laws of the United States. Obviously, we think, appellant has mistaken his remedy. It is not necessary for him to seek extraordinary equitable relief or to counter the traditional reluctance of the courts to enjoin criminal prosecutions and the enforcement of penal statutes. 9 He has a plain, direct, and adequate remedy by petition for writ of habeas corpus. 10 It is a speedy remedy, entitled by statute to special, preferential

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consideration to insure expeditious hearing and determination. 11

Our conclusion that the District Court lacked jurisdiction could well be regarded as determinative of the present case. However, even taking appellant's petition as, in effect, an application for a writ of habeas corpus, we think the judgment of dismissal of the lower court should be affirmed since it appears on the face of the petition that appellant is not entitled to the writ. 12 Appellant's basic contention is that Section 4164 of Title 18 U.S.C.A., as...

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