Willis v. Meier, 25345.
Decision Date | 07 December 1970 |
Docket Number | No. 25345.,25345. |
Citation | 435 F.2d 852 |
Parties | Daniel Ray WILLIS, Petitioner-Appellant, v. Raymond W. MEIER, Warden, Respondent-Appellee. |
Court | U.S. Court of Appeals — Ninth Circuit |
Daniel Ray Willis, in pro. per.
Stan Pitkin, U. S. Atty., Charles W. Billinghurst, Ass't U. S. Atty., Tacoma, Wash., for appellee.
Before BARNES, KOELSCH and HUFSTEDLER, Circuit Judges.
Appellant, a federal prisoner, contends that 18 U.S.C.A. § 4205, which provides that prisoners who violate their paroles serve the unexpired terms of their sentences without credit for the time on parole, subjects such prisoners to double punishment in violation of the guarantee against double jeopardy of the Fifth Amendment. Appellant is such a prisoner. The District Court ordered his petition for writ of habeas corpus dismissed. We affirm.
18 U.S.C. § 4205 reads as follows:
This Court has held that Section 4205 does not subject parole violators to double jeopardy. Canavari v. Richardson, 419 F.2d 1287 (9th Cir. 1969); Van Buskirk v. Wilkinson, 216 F.2d 735 (9th Cir. 1954).
Appellant contends that the position of this Court is patently in conflict with Jones v. Cunningham, 371 U.S. 236, 83 S.Ct. 373, 9 L.Ed.2d 285 (1963), and North Carolina v. Pearce, 395 U.S. 711, 89 S.Ct. 2072, 23 L.Ed.2d 656 (1969). Appellant's theory is that, when he went back to prison following parole violation to finish serving the time on his original offense, he should have been given credit for the punishment already exacted (citing Pearce). While he was on parole, he was in custody (citing Cunningham). Any custody is punishment. Therefore, appellant urges he must be given credit for the time he was on parole, despite the specific language to the contrary in 18 U.S.C. § 4205.
Appellant's theory is unsound. The proposition that parole can be equated to punishment in prison for the purpose of the question under review is contrary to authority. This Court has said that Cunningham "held only that a prisoner on parole was in technical `custody' for the purpose of filing a petition of habeas corpus." Canavari v. Richardson, supra, 419 F.2d at 1288. The Supreme Court has not equated a violated parole with incarceration but has analogized it to escape from prison during which the sentence does not run. Anderson v. Corall, 263 U.S. 193, 44 S.Ct. 43, 68 L. Ed. 247 (1923). This Court has adopted the analogy. Taylor v. Squier, 142 F. 2d 737 (9th Cir. 1944); cert. den. 323 U.S. 755, 65 S.Ct. 82, 89 L.Ed. 604; Rogoway v. Warden, 122 F.2d 967 (9th Cir. 1941), cert. den. 315 U.S. 808, 62 S.Ct. 797, 86 L.Ed. 528.
Reliance on North Carolina v. Pearce, supra, is also misplaced. That case involved the imposition of sentence at two different times. It held that the guarantee against double jeopardy requires that, in computing the sentence imposed upon a retrial, credit must be given for the time served under the vacated sentence. The facts under review are distinguishable. The time on parole and imprisonment following a violation of parole, without credit for the time on parole under the conditional release plan, are a part of the original sentence. Therefore, incarceration...
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U.S. v. Lominac, 96-4282
...is not given credit for a term of supervised release when he violates the conditions of that same release. Cf. Willis v. Meier, 435 F.2d 852, 853-54 (9th Cir.1970) (per curiam) (no Pearce credit against sentence for violated parole). Lominac is in a very different situation. If a term of im......
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Hudson v. State
...credit for time on parole, determined that the failure to credit time on parole does not violate double jeopardy. Willis v. Meier, 435 F.2d 852, 854 (9th Cir. 1970); Hodge v. Markley, 339 F.2d 973, 975 (7th Cir.), cert. denied 381 U.S. 927 (1965). Therefore, the validity of denial of parole......
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Morden v. United States Board of Parole
...of Section 4205 is well established. Cooks v. United States Board of Parole, 447 F.2d 63 (5th Cir. 1971); Willis v. Meier, 435 F.2d 852 (9th Cir. 1970); Moore v. Smith, 412 F.2d 720 (7th Cir. 1969); Weathers v. Willingham, 356 F.2d 421 (10th Cir. 1966); O'Callahan v. Attorney General of Uni......
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Harris v. United States Department of Justice, Civ. No. 70-2875.
...5 year sentence and the new expiration date thereof was correctly set at June 29, 1972. Section 4205 is constitutional. Willis v. Meier, 435 F.2d 852 (9th Cir. 1970); Van Buskirk v. Wilkinson, 216 F.2d 735 (9th Cir. Therefore, it is hereby ordered that the Petition for Writ of Mandamus be, ......