Carroll v. Squier, 10297.

• Decision Date: 11 June 1943
• Docket Number: No. 10297.,10297.
• Citation: 136 F.2d 571
• Parties: CARROLL v. SQUIER.
• Court: U.S. Court of Appeals — Ninth Circuit

136 F.2d 571 (1943)

CARROLL v. SQUIER.

No. 10297.

Circuit Court of Appeals, Ninth Circuit.

June 11, 1943.

William A. Herren, of Seattle, Wash., for appellant.

J. Charles Dennis, U. S. Atty., of Seattle, Wash., and Harry Sager, Asst. U. S. Atty., of Tacoma, Wash., for appellee.

Before GARRECHT, HANEY, and HEALY, Circuit Judges.

GARRECHT, Circuit Judge.

According to his petition for writ of habeas corpus, filed in the court below, Jack L. Carroll, on May 7, 1936, was convicted for violation of the Harrison Narcotic Act, 26 U.S.C.A. Int.Rev.Code, § 2550 et seq., in the District Court of the United States for the Northern District of California, and was sentenced to imprisonment for a term of five years. Carroll was incarcerated at Leavenworth Penitentiary until September 11, 1939, when he was conditionally released from imprisonment by the United States Board of Parole. At that time the prisoner had to his credit a deduction from his sentence of 480 days' good conduct deduction, 18 U.S.C.A. § 710, and 123 days' industrial good time deduction, 18 U.S.C.A. § 744h, this latter by reason of having worked in prison industries. The conditional discharge, as indicated by its name, imposed certain duties and restrictions upon the releasee, one of which was that he must go to and remain within the Northern District of California, and another, that he must report each month to the United States Probation Officer for that District. The petitioner alleged that he refused to agree to his release upon the conditions imposed, because he did not deem it advisable to return to San Francisco, knowing that violation of conditions would cause his return to prison and a forfeiture of the good conduct and industrial good time deductions theretofore credited him. He alleges further that under his protest he signed the conditional release papers and against his will left the place of confinement. He notified the probation officer at San Francisco of his arrival and made his report to said officer.

February 3, 1940, Carroll was again convicted of violation of the Harrison Narcotic Act by the District Court of the United States for the Northern District of California and was sentenced to serve a term of three years in the penitentiary. This sentence, after deduction of good conduct allowance, expired May 26, 1942.

April 12, 1940, the United States Board of Parole issued its warrant for the taking into custody of Carroll as a parole violator and fugitive from justice, with instructions that the warrant be not served on him until completion of the three year sentence and release therefrom. The maximum term for which he was imprisoned under the first sentence, exclusive of good time allowances and the time he was at large on conditional release, would have expired May 6, 1941.

The petitioner contended, in his application for the writ, that because he objected to the conditional release offered, or forced upon him, when he was imprisoned under his first sentence, he must be considered as though he had remained within the prison walls and that, therefore, he has completed serving the term for which he was first incarcerated, and having fulfilled the second sentence imposed upon him (with good conduct deduction), he must be discharged. This naturally implies that his first sentence continued to run while he was at large and throughout the period he was under arrest for the second crime and concurrently with the running of the second sentence, following imposition thereof.

Following the filing of the application for the writ an order to show cause issued to the Warden, and counsel was appointed to represent the petitioner. The Warden, as respondent, demurred generally. Thereafter a hearing was had, at which both petitioner and his attorney were present; testimony was heard, and the matter taken under advisement. Briefs were filed, and subsequently, on August 14, 1942, the court made an order denying the petition and sustaining the demurrer. On August 31, 1942, an order to that effect was signed and filed. The petitioner filed an affidavit of poverty, and the court, certifying petitioner's good faith, signed an order allowing him to prosecute an appeal in forma pauperis. Notice of appeal was filed on the same date as the order, September 21, 1942.

The question, fundamentally, is whether the court below erred in denying the petition for the writ. The petitioner contends here that his sentence on the first conviction ran, uninterrupted by the conditional release and subsequent sentence, until May 6, 1941, when it expired by reason of having been fully satisfied, and that although part of the two sentences overlapped, they ran concurrently until the date stated and that, the second sentence having expired on May 26, 1942, by passage of time and good conduct credit, he was thereupon entitled to be released from prison.

It is provided by 18 U.S.C.A. § 710, that each prisoner under conviction for any offense against the laws of the United States and confined in a United States penitentiary, for a definite term other than life, "whose record of conduct shows that he has faithfully observed all the rules and has not been subjected to punishment, shall be entitled to a deduction from the term of his sentence", to be computed as set forth in detail in the statute. In addition thereto, the prisoner may be allowed further deduction from the term of his sentence by actual employment in a prison industry, under the terms and conditions set out in Section 710, above. 18 U.S.C.A. § 744h. Upon completion of the minimum term of sentence, Carroll was entitled to a release under said sections by reason of good conduct throughout the term thereof and earned industrial good time, both of which operated to reduce the term of imprisonment to the aforesaid minimum term. 18 U.S.C.A. § 713; Bragg v. Huff, etc., 4 Cir., 118 F.2d 1006.

When the good time allowance, the granting of which, in the first instance, is in the nature of a privilege bestowed by the legislature, is earned, it becomes a matter of right, enforceable by habeas corpus proceedings. Douglas v. King, Warden, 8 Cir., 110 F.2d 911, 913, 127 A.L.R. 1200; King v. United States, 69 App.D.C. 10, 98 F.2d 291, 293; Story v. Rives, etc., 68 App.D.C. 325, 97 F.2d 182, 184; Aderhold, Warden, v. Perry, 5 Cir., 59 F.2d 379, 380. When the prisoner has complied with the good conduct statute, it is mandatory upon the Warden of the penitentiary to reduce the sentence in the manner prescribed. Clark v. Surprenant, 9 Cir., 94 F.2d 969, 973. It is the positive and absolute duty of the Warden to reduce the sentence of the...