Dolan v. Swope

• Decision Date: 23 October 1943
• Docket Number: No. 8299.,8299.
• Citation: 138 F.2d 301
• Parties: DOLAN v. SWOPE, Warden, et al.
• Court: U.S. Court of Appeals — Seventh Circuit

138 F.2d 301 (1943)

DOLAN v. SWOPE, Warden, et al.

No. 8299.

Circuit Court of Appeals, Seventh Circuit.

October 23, 1943.

Ferris E. Hurd, of Chicago, Ill., for appellant.

B. Howard Caughran, U. S. Atty., and Paul A. Pfister and David F. Long, Asst. U. S. Attys., all of Indianapolis, Ind., for appellee.

Before SPARKS, MAJOR, and KERNER, Circuit Judges.

SPARKS, Circuit Judge.

This appeal is from an order denying a petition for habeas corpus. It raises the question whether requiring a prisoner, released for good conduct, who has subsequently violated a parole regulation, to serve the portion of his term that was unexpired at the time of his release, without credit for the period between his release and the parole violation, is to extend his sentence and increase his punishment in violation of the Fifth Amendment of the Constitution of the United States.

There is no dispute as to the facts in this case, and the parties filed an agreed statement. According to that statement, appellant was sentenced to four years' imprisonment on February 27, 1939, and started serving sentence on that date. On March 27, 1942, on account of his good conduct credit, granted by statute (18 U. S.C.A. § 710), he was conditionally released from the custody of the warden of the penitentiary in which he had been confined, subject to all provisions of law relating to the parole of United States prisoners until expiration of the maximum term specified in the sentence, 18 U.S.C.A. § 716b. On November 4, 1942, he pleaded guilty to an affidavit filed in a city court in Indiana alleging that he had been found intoxicated in a public place, and that he had unlawfully driven an automobile while intoxicated. Judgment was entered against him for both offenses. On December 1, 1942, a member of the Parole Board issued a warrant reciting that he had violated the conditions of his release, and commanding that he be taken into custody. Pursuant to this warrant he was taken into custody on December 12, and returned to the penitentiary at Terre Haute on December 26, Upon recommitment, the Parole Board ordered that he serve the unexpired portion of his term of imprisonment, beginning with December 12, 1942.

On March 2, 1943, appellant filed petition for writ of habeas corpus, alleging that he was being illegally detained for the reasons that his four year term expired on February 26, 1943, and his detention thereafter violated his constitutional right to an indictment and trial by jury and that notice by the Board that his sentence began December 12, 1942, and full term expired November 12, 1943, amounted to the imposition of a new sentence which neither the Board nor the Warden had the legal right to impose, relying upon the statutory provision that "* * * if any such person shall be committed to a jail * * * the sentence of such person shall commence to run from the date on which he is received at such jail * * *. No sentence shall prescribe any other method of computing the term." 18 U.S.C.A. § 709a.

On April 10, 1943, the District Court after hearing, discharged a writ of habeas corpus theretofore issued on March 19, and remanded appellant to the custody of the warden of the penitentiary. It is this order which the appeal challenges.

Section 716b of the Criminal Code (18 U.S.C.A. § 716b) provides that any prisoner who shall have served the term for which he was sentenced, less deductions allowed for good conduct (pursuant to section 710) shall upon release be treated as if released on parole and shall be subject to all provisions of law relating to the parole of United States prisoners until the expiration of the maximum term or terms specified in his sentence. Section 723c, relating to the retaking of prisoners who have violated their parole, provides that the unexpired term of imprisonment of any such prisoner shall begin to run from the date he is returned to custody, and the time the prisoner was on parole shall not diminish the time he was originally sentenced to serve. Counsel for appellant freely concedes that his retaking and detention were pursuant to this statute, and that it authorizes the ruling of the District Court. He contends, however, that the statute is unconstitutional for the reason that it violates the Fifth Amendment by increasing the sentence, thereby subjecting him to double jeopardy.

Appellant urges that one released from prison, but subject to the parole laws, is in legal effect still imprisoned, relying upon the statement of the Supreme Court in Anderson v. Corall, 263 U.S. 193, 44 S.Ct. 43, 44, 68 L.Ed. 247, that, "While on parole the convict is bound to remain in the legal custody and under the control of the warden until the expiration of the term, less allowance, if any, for good conduct. While this is an amelioration of punishment, it is in legal effect imprisonment."¹

The precise question raised by appellant has not been raised in other cases construing the sections of the statute here involved. The case which appears to us most nearly to approach the one before us is Chandler v. Johnston, 9 Cir., 133 F.2d 139. There as here, the prisoner was released by virtue of the good conduct provisions of section 710; before the expiration of his original sentence he was rearrested, for violation of the Dyer Act, 18 U.S.C.A. § 408, and convicted on that charge. After serving his sentence on his second conviction, he was required to serve the balance of his original sentence without credit for the time spent by him on parole prior to the commission of his second offense. Appellant seeks to distinguish this case on the ground that the constitutional question there raised was directed to whether or not the prisoner acquired a vested right to his good conduct credit, and asserts that it does not present the question before this court, whether time served on parole prior to the commission of a second offense constituted actual service of his sentence which he cannot be required to serve a second time, under the language of the Corall case, supra.

Even though the specific question here presented was not raised in the Chandler case, the discussion is very pertinent. The Court of Appeals, for the Ninth Circuit held that Congress, being the national legislative body, might prescribe the expiation for a violation of any of its valid criminal statutes, and that, "If Congress has authority to impose a penalty, it can couple any...