Burnett v. Kindt, Civ. A. No. 84-T-1255-N.
| Citation | 599 F. Supp. 166 |
| Decision Date | 29 November 1984 |
| Docket Number | Civ. A. No. 84-T-1255-N. |
| Parties | S. Thomas BURNETT, Petitioner, v. Thomas R. KINDT, Respondent. |
| Court | U.S. District Court — Middle District of Alabama |
Penny Harrington, Nashville, Tenn., for petitioner.
John Bell, U.S. Atty., and D. Broward Segrest, Asst. U.S. Atty., Montgomery, Ala., for respondent.
This cause is before the court on the November 9, 1984, report and recommendation of the magistrate and the November 26, 1984, objections thereto, filed by the respondent, Thomas R. Kindt. For reasons that follow, the court is of the opinion that the objections are due to be overruled and the report and recommendation adopted.
18 U.S.C.A. § 4161 provides in part that "when two or more consecutive sentences are to be served, the aggregate of the several sentences shall be the basis upon which the deduction of good time shall be computed." This policy of aggregating consecutive sentences is equally applicable to the calculation of parole eligibility. See Young v. U.S. Parole Commission, 682 F.2d 1105, 1111 (5th Cir.1982); Newcombe v. Carter, 291 F.2d 202, 202 (5th Cir.1961); Brown v. U.S., 256 F.2d 151, 152 (5th Cir.1958). Kindt does not dispute that this is the general policy, nor does he dispute that the petitioner, S. Thomas Burnett, is serving consecutive sentences. Thus, according to the general policy, Burnett's sentences should be aggregated for purposes of calculating parole eligibility.
What Kindt objects to is the application of the general policy of aggregating consecutive sentences to Burnett's so-called split sentence. Kindt relies on a Bureau of Prison rule that provides an exception against aggregating split sentences with any other sentences. All agree that Burnett's sentence of five months and twenty-nine days imprisonment with execution of the remainder of one year suspended is a split sentence. It is also clearly permissible for such a split sentence to be imposed along with another sentence in a multicount conviction, U.S. v. Entrekin, 675 F.2d 759, 762 (5th Cir.1982), such as here where Burnett also received a sentence of one year imprisonment on the other count of his two-count conviction.
What is unclear is why there should be an exception from the general policy of aggregating consecutive sentences when a split sentence is concerned. Kindt has shown no rationale for such an exception, nor identified any statutory authority for making an exception. Indeed, it appears that the purported exception, on which Kindt relies, is not applied in every case, and on at least one occasion the government has "consolidated the detention part of both sentences, as a purported matter of grace to give him early parole." U.S. v. Fortner, 549 F.Supp. 657, 660 (D.S.C.1982). On this basis, Burnett appears entitled to have his consecutive sentences aggregated for purposes of calculating his parole eligibility, according to the general policy.
There is an additional ground for rejecting Kindt's contention that Burnett's sentences should not be aggregated. The consequence of this contention would be that Burnett must serve a total of seventeen months and twenty-nine days before becoming eligible for parole. This period exceeds what Burnett would have had to serve to be eligible for parole had he been given the maximum sentence available for his conviction.
Violation of 26 U.S.C.A. § 7203 carries a maximum term of imprisonment of one year. Convicted of two counts of such a violation, Burnett was liable for a maximum term of imprisonment of two years, that is one year on each count to be served consecutively. With such a two-year term, Burnett would have been eligible for parole after serving eight months in prison.
In fact, Burnett received a two-year sentence of exactly this kind; however, all but five months and twenty-nine days of one year was suspended. Kindt would now have it that this suspension of part of Burnett's sentence increased the term he must serve. Such a consequence violates not only common sense but the apparent intent of the split-sentence option "to enable a judge to impose a short sentence, not exceeding six months, followed by probation. ..." U.S. v. Cohen, 617 F.2d 56, 59 (4th Cir.1980). Kindt would have it that the sentencing court imposed a sentence with parole eligibility in excess of that provided for the maximum available term. It is axiomatic that a court may not impose a sentence in excess of the statutory maximum.
Accordingly, it is ORDERED:
(1) That respondent Kindt's November 26, 1984, objections, etc., be and they are hereby overruled;
(2) That the November 9, 1984, report and recommendation of the magistrate be and it is hereby adopted; and
(3) That the respondent Kindt and the United States Parole Commission: (a) afford the petitioner a parole hearing on November 30, 1984; (b) notify this court no later than December 5, 1984, whether they afforded the petitioner a parole hearing on November 30, 1984; and (c) immediately release the petitioner if they have not afforded him a parole hearing on November 30, 1984.
November 9, 1984
JOEL F. DUBINA, United States Magistrate.
Petitioner, a federal prison inmate, filed an application in this court for a writ of habeas corpus, pursuant to 28 U.S.C. § 2241, claiming that he is being unlawfully restrained of his liberty by the United States Bureau of Prisons, and is now in custody of the respondent, Thomas R. Kindt, Superintendent of Maxwell Prison Camp in Montgomery, Alabama.
On November 2, 1984, the Magistrate conducted an evidentiary hearing in this cause. Petitioner appeared with retained counsel and the respondent was represented by counsel. Based upon the evidence presented at the evidentiary hearing, the Magistrate makes the following findings:
The facts in this case are basically not in dispute. Petitioner entered a plea of guilty to two counts of failure to file federal income tax returns for the years 1979 and 1980 (26 U.S.C. § 7203). The Judgment and Probation/Commitment Order from the United States District Court for the Middle District of Tennessee ordered petitioner committed to the custody of the Attorney General of the United States for imprisonment as follows:
Petitioner began serving his sentence on March 4, 1984. The Bureau of Prisons has taken the position, not just in the instant case but in all similar cases, that "split sentences" should not be aggregated with other sentences. Consequently, the Bureau of Prisons has refused to aggregate the split sentence imposed under 18 U.S.C. § 3651 on Count Three with the sentence imposed on Count Two. As a result of this refusal, petitioner claims that he is being denied the right to request a hearing before the United States Parole Commission which constitutes unlawful restraint.
The result of the Bureau of Prisons' interpretation of 18 U.S.C. § 4205 and 18 U.S.C. § 3651 is that petitioner is now serving one year on Count Two of the Information. At the conclusion of that sentence, less good and honor time, petitioner will commence serving the five (5) months and twenty-nine (29) days incarceration imposed on Count Three. The consecutive sentences imposed on Counts Two and Three have not been aggregated by the Bureau of Prisons. Because the length of the first sentence is one year or less, petitioner is not eligible under 18 U.S.C. § 4205 for a parole hearing. Because the length of the second sentence is likewise less than one year, petitioner will subsequently again be denied the opportunity for a parole hearing. If the Bureau of Prisons were to aggregate the two sentences, seventeen (17) months and twenty-nine (29) days would be the basis for computation of the time required to be served prior to parole eligibility.
The instant petition for writ of habeas corpus is filed under 28 U.S.C. § 2241. Petitioner's sole ground for relief is the refusal of the Bureau of Prisons to aggregate the consecutive sentences imposed by the sentencing court. The proper method of attacking execution of a sentence is by a writ of habeas corpus and not in a post-conviction proceeding for vacation of a sentence or judgment. Brown v. United States, 610 F.2d 672 (9th Cir.1980). Where a federal prisoner is attacking not the sentences imposed but rather the execution of that sentence by the Parole Commission's interpretation of its guidelines, to that extent the complaint is cognizable only in a proceeding under § 2241 commenced in the district court having territorial jurisdiction over the petitioner's custodian. Wright v. United States Board of Parole, 557 F.2d 74 (6th Cir.1977); Freeman v. United States, 254 F.2d 352 (D.C.Cir.1958); Cohen v. United States, 593 F.2d 766 (6th Cir. 1979).
The Bureau of Prisons is requiring the petitioner to serve all of the one-year sentence imposed on Count Two, less good and honor time. He will only then begin to serve the five (5) months and twenty-nine (29)-day period of incarceration imposed for Count Three by the...
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Norris v. White, 86-7330
...sentences so that the time imposed would meet the year and a day requirement necessary for parole eligibility is that of Burnett v. Kindt, 599 F.Supp. 166 (M.D.Ala.1984), appeal dismissed as moot 780 F.2d 952 (11th Cir.1986). In the Burnett case, a United States Magistrate had thoroughly ex......