Dalton v. Warden, Maryland Penitentiary, Civ. A. No. 14580.

• Decision Date: 27 May 1963
• Docket Number: Civ. A. No. 14580.
• Citation: 216 F. Supp. 600
• Parties: Edgar DALTON v. WARDEN, MARYLAND PENITENTIARY and the State of Maryland.
• Court: U.S. District Court — District of Maryland

216 F. Supp. 600

Edgar DALTON v. WARDEN, MARYLAND PENITENTIARY and the State of Maryland.

Civ. A. No. 14580.

United States District Court D. Maryland.

April 16, 1963.

Certiorari Denied May 27, 1963.

No counsel appearing—not heard in court.

Certiorari Denied May 27, 1963. See 83 S.Ct. 1550.

R. DORSEY WATKINS, District Judge.

Petitioner, a state prisoner, has filed a petition for a writ of habeas corpus challenging the action of the Maryland Board of Parole and Probation (the Board) which, after revoking petitioner's parole, granted him credit on the remainder of the sentence originally imposed for five years of time spent on parole pursuant to Article 41, section 115 of the Annotated Code of Public General Laws of Maryland, 1957 Edition.

Petitioner was convicted of robbery in the Criminal Court of Baltimore City on April 11, 1944 and sentenced to twenty years, his maximum expiration date being April 11, 1964. He was first released on parole on June 19, 1947. In February of 1950 he was sentenced by a North Carolina State Court to serve fifteen years in the Raleigh State Prison for robbery. The Maryland Board obtained a detainer for petitioner which was lodged against him with the North Carolina authorities. On April 6, 1960 petitioner was returned to the Maryland Penitentiary for violation of parole. His maximum expiration date was revised to January 28, 1977. On June 6, 1960 he was released on parole for the second time. On January 5, 1961 petitioner was returned to the Maryland Penitentiary on a warrant for the retaking of a paroled prisoner, his maximum expiration date being revised to August 29, 1977. On February 21, 1961 a hearing was held before the Board and revocation of parole ordered with petitioner being given credit on the remainder of the sentence originally imposed for five years of time "spent on parole from June 19, 1947". His present maximum expiration date is now August 29, 1972.

Stated succinctly petitioner contends that he should have been credited for all the time spent in prison in North Carolina, a period of ten years and two months; that if he had received such credit his release date would have been approximately February 1961; and that, his sentence having already expired, he is now being illegally detained. Urging the same grounds, petitioner has previously sought relief by way of petition for a writ of habeas corpus filed in the Baltimore City Court. That petition was denied on December 18, 1962 by Judge Meyer M. Cardin who stated:

"The Law of Maryland provides at Article 41, Section 115, of the Annotated Code of Maryland, that the Board of Parole and Probation shall, within its discretion, allow credit for time spent on parole in the event of re-commitment. The action of the Board in denying the petitioner credit for the time he has spent on the street while he was on parole was within the Board's discretion and is not subject to review in habeas corpus proceedings. See Forrester vs. Warden, 207 Md. 622 114 A.2d 44 Schmidt vs. Warden, 212 Md. 637 128 A.2d 903. Even assuming such a point could be raised on habeas corpus, it has been held that this statute is not unconstitutional, see Hall vs. Warden, 211 Md. 661 128 A.2d 280."

Petitioner having exhausted his state remedies is now properly before this court. (Art. 42, section 6, 1957 Edition, Annotated Code of Public General Laws of Maryland providing for appeals in habeas corpus proceedings having been repealed effective June 1, 1958; Fay v. Noia, 372 U.S. 391, 83 S. Ct. 822, 9 L.Ed.2d 837).

Petitioner amplifies his basic contention by attacking the constitutionality of Article 41, section 115 of the Annotated Code of the Public General Laws of Maryland, 1957 Edition, on the grounds that (1) the discretionary authority conferred upon the Board to grant credit for time spent in the community under parole supervision in whole or in part gives to an administrative body under the executive department, the legal power to suspend the service of a sentence originally imposed by the judicial branch of the Government in violation of the Federal Constitution and of Article III, Section 60 of the Constitution of Maryland which provides "The General Assembly of Maryland shall have the power to provide by suitable general enactment (a) for the suspension of sentence by the Court in criminal cases; * * * and (c) for the release upon parole in whatever manner the General Assembly may prescribe, of convicts in prison under sentence for crimes"; (2) the "presumption" in Section 115 that the parolee shall not receive prison credit for the time spent in the community under the Board's supervision subjects a parolee to a law denying him penal credit for time served, while men not subject to parole provisions automatically receive such credit and hence is a denial of due process and equal protection of the laws; and (3) the discretion given to the Board to grant credit for time spent in the community under parole supervision or for such part thereof as to the Board may seem fair and just under the circumstances is an arbitrary delegation to an administrative body of a "power of a penal nature which in effect may punish the recipient of a criminal sentence or revise a criminal sentence imposed by the court or suspend the service of a sentence in sequence."

Considering these contentions in order it is clear that, first, the provisions of the Maryland parole revocation statute do not contemplate a suspension of an imposition or service of sentence. The Supreme Court of the United States in construing a similar provision of the Federal parole statute, which statute is more stringent than the Maryland statute in that the Federal statute provides that in every instance a parole violator may not receive credit on his sentence for "street time", stated:

"Mere lapse of time without imprisonment or other restraint contemplated by the law does not constitute service of sentence. Escape from prison interrupts service, and the time elapsing between escape and retaking will not be taken into account or allowed as a part of the term. citations omitted The parole authorized by the statute does not suspend service or operate to shorten the term." (Anderson v. Corall, 1923, 263 U.S. 193, 196, 44 S.Ct. 43,

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