Daniels v. Farkas, CV 76-1820-DWW.

• Citation: 417 F. Supp. 793
• Decision Date: 03 August 1976
• Docket Number: No. CV 76-1820-DWW.,CV 76-1820-DWW.
• Parties: Oscar L. DANIELS, Jr., Petitioner, v. G. M. FARKAS, Warden, Federal Correctional Institution, Lompoc, California, and the United States Parole Commission, Respondents.
• Court: U.S. District Court — Central District of California

417 F. Supp. 793

Oscar L. DANIELS, Jr., Petitioner, v. G. M. FARKAS, Warden, Federal Correctional Institution, Lompoc, California, and the United States Parole Commission, Respondents.

No. CV 76-1820-DWW.

United States District Court, C. D. California.

July 8, 1976.

Amended Order August 3, 1976.

O'Melveny & Myers, Richard E. Sherwood, Ira M. Feinberg, Los Angeles, Cal., Kipperman, Shawn & Keker, John W. Keker, San Francisco, Cal., for petitioner.

William D. Keller, U. S. Atty., Eric A. Nobles, Asst. U. S. Atty., Chief, Crim. Div., Juan P. Robertson, Asst. U. S. Atty., Los Angeles, Cal., for respondents.

ORDER DENYING WRIT OF HABEAS CORPUS

DAVID W. WILLIAMS, District Judge.

Petitioner Daniels moves this court to grant a writ of habeas corpus releasing him from custody from the federal prison at Lompoc. Jurisdiction is conferred under 28 U.S.C. § 2241(c)(1) and (3).

Petitioner is presently serving a five-year sentence at Lompoc stemming from a 1967 plea of guilty in Texas to possession of less than an ounce of marijuana. He was initially sentenced on February 27, 1967 to five years probation on condition that he serve six months in custody. However, in December, 1968, petitioner's probation was revoked for failure to report to his probation officer and the sentencing judge imposed the five-year sentence upon him.

Petitioner served 19 months of this sentence and was paroled in July, 1970. Petitioner was held in custody at Lompoc until January, 1975 at which time he was placed in a halfway house in San Francisco. He "walked away" from the halfway house in April, 1975. A warrant was issued but petitioner was not arrested until February, 1976. A parole recission was held May 13, 1976 which resulted in a denial of petitioner's parole and a revocation of a pre-escape grant of an April, 1975 parole date. His mandatory release date is now October 20, 1976.

Petitioner contends that under 18 U.S.C. § 4210(b) his custody is illegal in that he is entitled to receive credit toward completion of his sentence for the time upon which he was on parole. If such time is added to the time already served in custody, the lawful jurisdiction of the respondents over him has terminated and petitioner's immediate release is mandatory.

Section 4210(b), which became effective on May 14 of this year states in part:

"Except as otherwise provided in this section, the jurisdiction of the Commission over the parolee shall terminate no later than the date of the expiration of the maximum term or terms for which he was sentenced . . ."

Two exceptions are provided to the statute which are not applicable here.

Petitioner contends that as a result of the passage of this section, the jurisdiction of the respondent has already ended and that therefore this writ should issue. Petitioner bases his calculation upon having served four years in prison and having accumulated over three years of "good time" while on parole. The issue thus presented does not involve an evaluation of petitioner's calculations, but upon a consideration of the retroactivity of this new section.

Section 4210(b) clearly indicates and intends that a prisoner is to receive credit for that time which he has served on parole. The section previous to this, 18 U.S.C. § 4205 (which was repealed at the time § 4210(b) came into effect)...