Banks v. O'GRADY, 492
| Decision Date | 03 August 1940 |
| Docket Number | No. 492,492 |
| Citation | 113 F.2d 926 |
| Parties | BANKS v. O'GRADY, Warden. |
| Court | U.S. Court of Appeals — Eighth Circuit |
Before SANBORN, WOODROUGH, and THOMAS, Circuit Judges.
On July 20, 1940, Judge Thomas of this court, through the office of the Clerk of the Court, received from the petitioner a "Petition for Writ of Habeas Corpus." This court being in session the petition was, in accordance with our practice, referred to the court, and it has by us been given careful consideration.
Section 455, Title 28 U.S.C.A. (R. S. § 755), provides that: "The court, or justice, or judge to whom such application is made shall forthwith award a writ of habeas corpus, unless it appears from the petition itself that the party is not entitled thereto." It is the right and duty of a federal court to make a preliminary examination to determine whether a petition for a writ of habeas corpus discloses upon its face sufficient basis for the issuance of the writ, and to dismiss the petition if it does not. Mothershead v. King, Warden, 8 Cir., 112 F.2d 1004, decided June 29, 1940; Thompson v. King, Warden, 8 Cir., 107 F.2d 307, 308; Harrison v. King, Warden, 8 Cir., 111 F.2d 420; McKee v. Johnston, Warden, 9 Cir., 109 F.2d 273; Murdock v. Pollock, 8 Cir., 229 F. 392. We shall, therefore, examine the Petition to determine its sufficiency as a matter of law.
The petitioner alleges that he is unlawfully imprisoned in the Nebraska State Penitentiary at Lancaster, Nebraska, in the custody of the respondent in violation of section 1 of the Fourteenth Amendment to the Constitution of the United States. Respondent's authority for detaining the petitioner is a commitment founded upon a judgment and sentence of the district court of Sarpy county, Nebraska. On November 26, 1918, the petitioner pleaded guilty to an information charging him with the crime of forgery, and was sentenced to serve an indeterminate period of from one to twenty years in the penitentiary, the sentence to run from October 18, 1918. After he had served until September 22, 1923, the State Prison Board of Nebraska entered into a Parole Agreement with the petitioner and released him to the authorities of the State of Missouri. The parole was on condition that he should report monthly in writing to the Chief State Probation Officer; that he should conduct himself honestly and obey the law; that while on parole he should remain in the legal custody and under the control of the State Board of Pardons; and it was expressly agreed that the Board of Pardons may summarily determine whether any of the conditions of the parole have been broken, and that the parole may be revoked as a matter of executive authority. It was further agreed that he was liable to be retaken and again confined in the penitentiary for any reason satisfactory to the Board. He further agreed that in case the parole should be revoked: "I will freely and voluntarily accompany any officer of the Board of Pardons, or any other officer, having proper authority as a prisoner and fugitive from justice from any place * * * in any state in the United States to the Nebraska Penitentiary, for the purpose of answering to the charge of violation of parole."
The petitioner was released by the Missouri authorities November 15, 1923, and returned to Omaha, Nebraska, December 16, 1923. From Omaha he went to Keith county, Nebraska, where in February, 1934, he pleaded guilty to an information charging him with stealing an automobile, for which he was sentenced to the penitentiary for a period of two years. Having served his term he was discharged on October 7, 1935. Instead of being released he was assigned his old prison number given him in October, 1918...
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