Buchanan v. Blackwell
| Citation | 372 F.2d 451 |
| Decision Date | 15 February 1967 |
| Docket Number | No. 23927.,23927. |
| Parties | Alex BUCHANAN, Appellant, v. Olin G. BLACKWELL, Warden, United States Penitentiary, Atlanta, Georgia, Appellee. |
| Court | United States Courts of Appeals. United States Court of Appeals (5th Circuit) |
Alex Buchanan, pro se.
Thomas K. McWhorter, Asst. U. S. Atty., Charles L. Goodson, U. S. Atty., Robert L. Smith, Asst. U. S. Atty., for appellee.
Before TUTTLE, Chief Judge, and BELL and GOLDBERG, Circuit Judges.
Appellant was convicted and sentenced on May 15, 1958, by the United States District Court for the Western District of North Carolina to serve a total of five years imprisonment for breaking and entering a Post Office in violation of 18 U.S.C.A. § 2115. After serving his five year sentence less good time credits, he was released from federal prison, pursuant to 18 U.S.C.A. § 4163, on September 25, 1961.
Some ten months later, on July 29, 1962, appellant was arrested and charged with a state criminal offense in Tennessee. When he reported to his federal parole officer on October 1, 1962, he was shown a warrant, issued by the United States Board of Parole, charging him with violating the conditions of his release on the federal sentence of May 15, 1958. On October 29, 1962, he was tried and convicted on the state charge, and sentenced to five years imprisonment in the Tennessee State Penitentiary. Upon his release from state prison on December 29, 1965, he was returned to federal custody under the warrant issued by the United States Board of Parole in 1962, and incarcerated in the United States Penitentiary at Atlanta, Georgia, to complete service of his 1958 federal sentence.
On June 14, 1966, appellant petitioned the United States District Court for the Northern District of Georgia for a writ of habeas corpus, asserting vigorously (albeit mistakenly)1 that under the rule of Birch v. Anderson, 123 U.S.App.D.C. 153, 358 F.2d 520 (1965), the Parole Board lost its power over him by failing to execute its warrant before November 15, 1962 — the date upon which the terminal 180 day period of his full five year sentence of May 15, 1958, would have begun. In a memorandum opinion, the District Court denied appellant's petition, but granted his motion for leave to appeal in forma pauperis. The case is submitted on the record and the briefs of both parties, without oral argument.
At the outset, we point out that the authority of the Board of Parole to issue the warrant here involved is clear. At the time of his release from federal prison on September 25, 1961, appellant had completed service of his original five year federal sentence less good time credits, and was thus a mandatory release under 18 U.S.C.A. § 4163. As such, he was subject to the provisions of 18 U.S. C.A. § 4164, which states:
"A prisoner having served his term or terms less good-time deductions shall, upon release, be deemed as if released on parole until the expiration of the maximum term or terms for which he was sentenced less one hundred and eighty days." (Emphasis added.)
Appellant's "maximum term less one hundred and eighty days" under the five year sentence of May 15, 1958, did not expire until November 15, 1962. Consequently, appellant occupied the status of a parolee when the Parole Board, prior to October 1, 1962, exercised the authority granted to it by 18 U.S.C.A. § 4205, which provides:
"A warrant for the retaking of any United States prisoner who has violated his parole, may be issued only by the Board of Parole or a member thereof and within the maximum term or terms for which he was sentenced." (Emphasis supplied.)
The illegality, then, in appellant's present detention, if any there be, must arise from the fact that execution of the Parole Board's warrant was delayed until after the time when its power to treat with him as a parolee normally would have expired...
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United States ex rel. Williams v. Fitzpatrick
...4 Shelton v. United States Board of Parole (The Parole Board Cases), 388 F.2d 567, 575 & n. 15 (D.C. Cir. 1967); Buchanan v. Blackwell, 372 F.2d 451, 452 (5th Cir. 1967). 5 18 U.S.C. §§ 4164, 4165, 4207; Welch v. Taylor, 292 F.2d 481, 482 (10th Cir. 1961); Singleton v. Looney, 218 F.2d 526,......
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Tirado v. Blackwell, 24283
...service of an intervening prison sentence. Smith v. Blackwell, 5 Cir., 367 F.2d 539, decided on October 12, 1966; Buchanan v. Blackwell, 5 Cir., 372 F.2d 451, decided February 15, 1967; Teague v. Looney, 10 Cir. 1959, 268 F.2d The appellant was due to be unconditionally released (full term ......
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Cook v. United States Attorney General, 73-1436.
...Williams v. United States Board of Parole, 5 Cir., 1970, 428 F.2d 1210; Clark v. Blackwell, 5 Cir., 1967, 374 F.2d 953; Buchanan v. Blackwell, 5 Cir., 1967, 372 F.2d 451. A parole violators warrant is executed when its command is carried out — that is when the parolee is retaken and returne......
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Jackson v. Attorney General of United States, 71-2024 Summary Calendar.
...been the law before. Cox v. Feldkamp, 438 F.2d 1 (5th Cir. 1971); Tirado v. Blackwell, 379 F.2d 619 (5th Cir. 1967); Buchanan v. Blackwell, 372 F.2d 451 (5th Cir. 1967); Smith v. Blackwell, 367 F.2d 539 (5th Cir. 1966). See Moore v. Smith, 412 F.2d 720, n. 4 (7th Cir. 1969); Petition of Cas......