Carswell v. Parker

• Decision Date: 24 July 1967
• Docket Number: No. 20568.,20568.
• Citation: 128 US App. DC 123,385 F.2d 645
• Parties: Thomas CARSWELL, Appellant, v. J.J. PARKER, Warden, U.S. Penitentiary and U.S. Parole Board, Appellees.
• Court: U.S. Court of Appeals — District of Columbia Circuit

128 US App. DC 123, 385 F.2d 645 (1967)

Thomas CARSWELL, Appellant, v. J.J. PARKER, Warden, U.S. Penitentiary and U.S. Parole Board, Appellees.

No. 20568.

United States Court of Appeals District of Columbia Circuit.

Argued March 10, 1967.

Decided July 24, 1967.

Mr. Jim W. Gipple, Washington, D. C. (appointed by this court) for appellant.

Mr. Edward T. Miller, Asst. U. S. Atty., with whom Messrs. David G. Bress, U. S. Atty., Frank Q. Nebeker, Mrs. Ellen Lee Park, and Mr. E. Grey Lewis, Asst. U. S. Attys., were on the brief, for appellees.

Before WRIGHT, McGOWAN and LEVENTHAL, Circuit Judges.

PER CURIAM:

In 1954, appellant was convicted of federal narcotics offenses and sentenced to imprisonment. He was mandatorily released pursuant to 18 U.S.C. § 4164 having accumulated 1574 days of statutory and extra good time credits. Under the statute, appellant remained under the jurisdiction of the Parole Board, his release being deemed equivalent of a parole, until the expiration of those 1574 days minus the terminal 180-day period. Birch v. Anderson, 123 U.S.App.D.C. 153, 358 F.2d 520 (1965). As a matter of arithmetic computation, and leaving aside any question of interruption or "tolling",¹ appellant's 1954 sentence would have been completed on August 29, 1965.

In February, 1965, the Parole Board issued its warrant charging that appellant had violated the terms and conditions of his release² and within the week that warrant was executed, i. e., appellant was taken into custody by federal authorities pursuant to the warrant. Following a preliminary interview where appellant "admitted having violated one or more of the conditions of his release," appellant was sent to a federal penitentiary. Several months later a full revocation hearing was held. Because appellant contended that once disposition of the pending state charges was made "he could prove that the violations alleged against him would also lack substance," the Board initially reserved decision. In October, 1965, the state charges remaining undetermined, the Board rendered its decision and found that appellant had violated the terms of his release. An order of revocation was entered requiring appellant to serve the remainder of his original sentence although credit against that time was given from the date the violator warrant was executed and appellant retaken into federal custody.

As the case comes to us, a narrow question is posed. It is not contended that the Board failed to afford appellant a full and fair hearing on the underlying facts before entering its revocation order. Hyser v. Reed, 115 U.S. App.D.C. 254, 318 F.2d 225 (en banc), cert. denied, 375 U.S. 957, 84 S.Ct. 446, 11 L.Ed.2d 315 (1963). It is conceded that the Board's warrant was issued and executed promptly after the facts constituting the violation came to the Board's attention and at a time when the Board had statutory power to act. Birch v. Anderson, supra. There is no allegation that the Board unreasonably delayed in holding the revocation hearing or that appellant was prejudiced by the three month delay in holding the revocation hearing; and we are not called upon to speculate as to the result of a habeas corpus proceeding instituted during the eight months while appellant was incarcerated pursuant to the warrant but awaiting either hearing or decision on the fact of violation. Rather, as appellant puts it, "the sole question presented by this appeal" is whether under the facts of this case the Parole Board had jurisdiction to enter a revocation order after the expiration of appellant's 1954 sentence. We hold that the Board had such jurisdiction and affirm.

Congress has comprehensively legislated with respect to mandatory releasees and parole violators. A mandatory releasee, such as appellant, is "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." 18 U.S.C. § 4164. 18 U.S.C. § 4205 requires that a violator warrant "be issued only by the Board of Parole or a member thereof and within the maximum term or terms for which he was sentenced." Reading those provisions together, we have held that a warrant charging a mandatory releasee with violating the terms and conditions of his release must be issued prior to the expiration of the maximum term less 180-days. Birch v. Anderson, supra. Here, the warrant was not only issued but also executed...