Desmond v. United States Board of Parole, 7009.

• Decision Date: 21 October 1968
• Docket Number: No. 7009.,7009.
• Citation: 397 F.2d 386
• Parties: George C. DESMOND, Defendant, Appellant, v. The UNITED STATES BOARD OF PAROLE, Appellee.
• Court: U.S. Court of Appeals — First Circuit

397 F.2d 386 (1968)

George C. DESMOND, Defendant, Appellant, v. The UNITED STATES BOARD OF PAROLE, Appellee.

No. 7009.

United States Court of Appeals First Circuit.

July 3, 1968.

Certiorari Denied October 21, 1968.

Thomas G. Dignan, Jr., Boston, Mass., by appointment of the Court, for appellant.

George A. Sheehy, Asst. U. S. Atty., with whom Paul F. Markham, U. S. Atty., and Herbert N. Goodwin, Asst. U. S. Atty., were on brief, for appellee.

Before ALDRICH, Chief Judge, McENTEE and COFFIN, Circuit Judges.

Certiorari Denied October 21, 1968. See 89 S.Ct. 249.

COFFIN, Circuit Judge.

This is an appeal from a district court denial of a "Petition for Injunction" filed by appellant pro se seeking to enjoin the United States Parole Board from enforcing a detainer upon his release from his current confinement in a state penal institution. The district court dismissed the petition "on its merits" and without hearing.

The major issue raised is whether, in resentencing appellant after partially served prior sentences had been voided, the district court treated as vested and indefeasible "good conduct time" which had accrued in the service of the earlier sentences. If it did, appellant contends that he had fully served his federal sentence by the time that the detainer was lodged against him and was therefore beyond the Parole Board's reach. If it did not, the detainer was lawfully issued.

Appellant had been convicted after jury trial of narcotics laws violations and on June 30, 1962 sentenced to two concurrent five year terms. As the result of subsequent proceedings stemming from a motion under 28 U.S.C. § 2255, the district court, on February 1, 1965, vacated the sentence and imposed a new sentence of two concurrent five year terms to commence as of the date of imposition. This judgment was vacated and the 1962 verdict was set aside on appeal. Desmond v. United States, 345 F.2d 225, 14 A.L.R.3d 718 (1st Cir. 1965). On a plea of guilty appellant was again convicted and on March 21, 1966 received the sentence which he claims he fully served prior to the issuance of the detainer.

After the appellant pleaded guilty and the court interrogated him, counsel for the government recommended "a minimum mandatory sentence of five years" but called the court's attention to the time appellant had spent in custody for want of bail and the time served under the 1962 sentence. Appellant's counsel urged that such time should be credited and that appellant "should receive the credits for good behavior accruing to him." The court replied, "He will get those credits automatically." The court concluded the colloquy by saying, "I must impose a minimum of five years on the indictment. I will put a specific provision in the judgment, Mr. Desmond has to be credited with any time in Federal custody by reason of his not being able to make bail. He also is to be given credit for any time actually served on the sentence eventually vacated on appeal." Nothing further was said about "good time".

The formal judgment and commitment, issued the same day, is as follows:

"IT IS ADJUDGED that the defendant is hereby committed to the custody of the Attorney General or his authorized representative for imprisonment for a period of five (5) years. The Attorney General is directed to give defendant credit toward service of this sentence for the time spent in custody prior to the imposition of the sentence imposed on June 20, 1962 for want of bail set for this offense, and also to credit defendant for the time spent in custody on the basis of said sentence which was vacated by order of the Court of Appeals for the First Circuit on May 18, 1965, plus credits, if any, for good behavior while serving the vacated sentence. * * *"

Appellant, after serving 9½ months under the March 21, 1966 sentence, and having been given credit for some 470 days for good time earned, was mandatorily released on January 4, 1967 under 18 U.S.C. § 4163.¹ On June 21, 1967 a warrant was issued for his arrest for violating the terms of his release and, since he is presently serving concurrent one year sentences at a state penal institution for other offenses, was lodged there as a detainer.

At the time this sentence was imposed, appellant had served 93 days in custody for want of bail and 974 days under the 1962 sentence, or a total of 1067 days. The record is silent as to good time which had accrued but appellant asserts that if a hearing had been held on his petition there is a possibility that he would have been able to establish, on the basis of 8 days for the 31 complete months served, 248 days. Claiming that this time was credited to him just as absolutely as his custody time, appellant argues that the sum of his "credits" totals 1315 days and that his 1966 sentence was, in effect, one for 510 days (5 years or 1825 days minus 1315 days).

Such a sentence would expire 510 days from March 21, 1966, or on August 13, 1967. But, because 18 U.S.C. § 4164 provides that the Parole Board's authority ceases 180 days before the expiration of the term of the sentence, such authority in this case would have terminated on February 14, 1967 (August 13, 1967 less 180 days), over four months prior to the issuance of the detainer. The government, on the other hand, contends that credit for good time was given only conditionally, being subject to forfeiture, and that the March 21, 1966 sentence was for 5 years less the 1067 days of prior time served, which would bring the maximum termination date to April 17, 1968. Deducting the 180 days under 18 U.S.C. § 4164 would bring the effective termination date back to October 20, 1967, a date well after the detainer issued.

A preliminary problem of procedure and jurisdiction is presented by appellant's "Petition for Injunction". The district court, as we have noted, dismissed the petition on its merits, without considering the jurisdictional category into which it might fit. The petition itself sought to invoke the All Writs section of the Judicial Code, 28 U.S.C. § 1651. We do not reach the question of the applicability of this section since we feel that, as the district court may have assumed, the petition may be considered as a motion under 28 U.S.C. § 2255.

While appellant does not contend that the sentence is defective if his interpretation is accepted, he asserts, as will be discussed later, that if the government's interpretation is accepted, the sentence would violate the provisions of 18 U.S.C. § 3568. We therefore consider the petition as asking that the sentence be "corrected" within the intendment of 28 U.S.C. § 2255.

There remains, if section 2255 is to be considered applicable, the question whether the appellant, now held in a state prison, but also having the status of a mandatory releasee for whose return to a federal institution a warrant has been issued, is at the same time in federal "custody".

In Peyton v. Rowe, 391 U.S. 54, 88 S.Ct. 1549, 20 L.Ed.2d 426 (5/20/68), the Court held that a defendant while serving the first of two consecutive sentences could attack the second. It does not seem to us a significant stretch to say that he may attack a federal sentence, yet to be served, while defendant is in custody completing a state sentence. The same principles which dictated Peyton v. Rowe seem to us to support jurisdiction here. To be sure, defendant is not physically "in custody under sentence of a court established by Act of Congress", but if custody is to be construed as single and continuous, we may join the courts as well. There is just as much reason to resolve the legality of resumed incarceration under an existing sentence before such resumption occurs as to resolve the legality of continued incarceration under a consecutive sentence yet to commence. Failure to allow such resolution would in both cases result in the possibility that later litigation might be successful but that "* * * each day prisoners are incarcerated under those convictions while their cases are in the courts will be time that they might properly have enjoyed as free men." Peyton v. Rowe, supra at 64, 88 S.Ct. at 1554. We therefore hold that we have jurisdiction under 28 U.S.C. § 2255.

Coming to the substantive issue, we must conclude that appellant has misconceived the nature of the good time credit, the intent of the court's judgment, and the requirements of 18 U.S.C. § 3568. His basic argument is that, since the court intended to protect his accrued good time (a proposition with which we agree), the only way in which this could be done was to give an absolute and indefeasible credit. Otherwise, he argues, if his accrued good time is treated as being earned under a five year sentence, that sentence must necessarily be referable to a date prior to his resentencing on March 21, 1966. It would, he concludes, therefore be nunc pro tunc and violative of the "commencement of sentence" language of section 3568.²

We deal first with the intent of the court and the nature of the good time credit. In the light of both the oral statement of the district court and the formal judgment, it is a strained interpretation to conclude that the court looked on credits for good time as having vested. The court's oral reference to appellant's receiving those credits "automatically" implies nothing more nor less than the normal impact of applicable laws and regulations. This is entirely consistent with the reference in the formal judgment to "credits, if any, for good behavior while serving the vacated sentence". There would be no reason for the phrase of contingency if past accrued good behavior time had been deemed frozen and non-forfeitable.

Wholly apart from the court's intent, it is clear that were the sentence to be construed as considering the accrued good time as finally vested and not subject to forfeiture, appellant would have in effect...