Durkin v. Davis

• Decision Date: 23 March 1976
• Docket Number: No. 75-1338,75-1338
• Citation: 538 F.2d 1037
• Parties: Thomas Harry DURKIN, Appellee, v. Jack F. DAVIS, Director, Dept. of Corrections, et al., Appellants.
• Court: U.S. Court of Appeals — Fourth Circuit

Page 1037

538 F.2d 1037

Thomas Harry DURKIN, Appellee, v. Jack F. DAVIS, Director, Dept. of Corrections, et al., Appellants.

No. 75-1338.

United States Court of Appeals Fourth Circuit.

Argued Oct. 10, 1975.

Decided March 23, 1976.

Jim L. Chin, Asst. Atty. Gen. of Va., Richmond, Va. (Andrew P. Miller, Atty. Gen. of Va., and Robert E. Shepherd, Jr., Asst. Atty. Gen. of Va., Richmond, Va., on brief) for appellants.

John D. Grad, Alexandria, Va. (Philip Hirschkop and Associates, Alexandria, Va., on brief) for appellee.

Before HAYNSWORTH, Chief Judge, and RUSSELL and WIDENER, Circuit Judges.

DONALD RUSSELL, Circuit Judge:

§ 53-208, Code of Virginia (1950), as amended, provides that any person sentenced for confinement under the criminal laws of that Commonwealth "shall have deducted from any such (sentence) all time actually spent * * * in jail * * * awaiting trial, or pending an appeal" and "it shall be the duty of the court or judge, when entering the final order in any such case, to provide that such person so convicted be given credit for the time so spent." ¹ The procedure mandated by this statute contemplates a sentence imposed by the trial court, accompanied by a provision in "the final order in any such case" giving credit on the sentence imposed for the time "spent * * * in jail * * * awaiting trial, or pending an appeal." The statute, however, includes a limitation to the effect that, "(N)o such credit, however, shall be given to any person who shall break jail or make an escape."

The petitioner was convicted and sentenced in February, 1968, for the crimes of robbery, abduction, and unauthorized use of motor vehicle. He received consecutive 20 year terms for the robbery and abduction convictions and was given a five year concurrent sentence on the unauthorized use conviction, to be served concurrently with the other sentences, or a basic sentence of 40 years on all charges. Unable to make bond when arrested, he spent 16 months in jail "awaiting trial, or pending an appeal," prior to his escape on September 22, 1968. After his apprehension, he was committed for service of his sentence. At some time not stated in the record, an order was entered under § 53-208 to the effect that the petitioner was not entitled to credit for "jail time" ² because of his escape. Apparently unaware of this order, the petitioner later inquired of the trial court whether credit for his jail time had been given him. He was advised by the Clerk of the Circuit Court that he had been denied credit for jail time because of his escape.

Almost five years later, the petitioner filed in the Virginia Supreme Court a petition for a writ of mandamus to require the granting of the credit denied him for his period of confinement "awaiting trial" and "pending appeal." An order to show cause was issued directed to the Judge of the State Court and the Superintendent of the Virginia State Penitentiary. The respondents, by their return, asserted the validity of the action in denying such credit. To that return, the petitioner made answer, asserting, among other things, that the portion of § 53-208 authorizing the denial of credit in the event of escape was invalid and that, by its action, the sentencing court had "in effect sentenced defendant to an additional sixteen months and six days imprisonment in a State prison or penitentiary without presentment or indictment of a Grand Jury and without due process of law." On the pleadings as thus made, the Supreme Court of Virginia entered its order, holding that the application for the writ of mandamus should be dismissed. It gave no reason for the dismissal. The petitioner then filed this habeas petition in the District Court which granted the writ in a decision reported at 390 F.Supp. 249. ³ The respondents have appealed. We remand with directions.

It seems recognized that the right to credit for jail time awaiting trial on a bailable offense and pending appeal is not a matter of legislative grace but is a right constitutionally mandated, ⁴ available to state prisoners as well as federal prisoners. ⁵ It is pointed out by the respondents, though, that generally the credit for jail time awaiting trial will not be allowed where the sentence, when increased by the pre-sentence confinement time, does not exceed the maximum sentence for the offense of which the prisoner has been convicted. ⁶ This limitation upon the right rests on what has been described as a "conclusive presumption" that the sentencing judge had given credit in his sentence to such jail time. ⁷ We are not concerned, however, with that limitation which is clearly irrelevant to this case. The Virginia statute establishes an obligatory statutory procedure for sentencing which requires credit to be given in the final order for time spent in jail awaiting trial or pending appeal. In this case, the petitioner's sentence was forty years. On that basic sentence he admittedly never received that credit for jail time and he was denied it because of his escape. The question posed by this proceeding is, thus, whether the state by statute can validly deny a right to credit on his sentence for jail time awaiting trial and pending appeal because of his escape.

The District Court found that the condition in § 53-208 providing that such credit should be denied if the prisoner escapes was constitutionally invalid. In reaching that conclusion, it reasoned that to deny the petitioner his constitutional right to credit on his sentence for jail time without notice and without any hearing whatsoever violated the equal protection ⁸ and double jeopardy clauses of the Constitution. ⁹ The equal protection violation is founded on the inequality of treatment between one unable to make bail and one who can make bail, in the case of pre-sentence time, as well as the inequality resulting between the defendant who appeals and the defendant who does not, in the case of credit for confinement pending appeal. The double jeopardy violation is premised on the conclusion that "(P)retrial detention is nothing less than punishment." Parker v. Bounds (D.C.N.C.1971) 329 F.Supp. 1400, 1401; Culp v. Bounds (D.C.N.C.1971)325 F.Supp. 416, 419. ¹⁰ Under this premise, such punishment is considered multiple punishment since no credit is given on the subsequent sentence imposed for the single offense. ¹¹ The double jeopardy clause prohibits equally multiple punishments and multiple convictions for the same offense. Ex parte Lange (1873) 85 U.S. 163, 173, 21 L.Ed. 872; North Carolina v. Pearce (1969) 395 U.S. 711, 718, 89 S.Ct. 2072, 23 L.Ed.2d 656. If the petitioner's right to credit for his jail time is a right protected by the equal protection and the double jeopardy provisions of the Constitution, the District Court concluded, it was a right which could not be forfeited or denied because of any later conduct; nor could the State, which was obligated to grant such credit, attach conditions to that right. ¹² And this is particularly so when such denial, the District Court found, would amount to a sentence imposed without trial or a hearing of almost three times the sentence statutorily authorized for the crime of non-forceable escape which was the basis on which the State predicated its claim of power to deny the credit. Actually there would be no impediment, under the respondent's construction of the statute, to a trial of the petitioner for unlawful escape, thereby subjecting the petitioner to the possibility of even further additional punishment for the same offense. The respondents' answer seems to be that the State's right to deny credit for jail time if the prisoner escapes does not constitute the imposition of multiple punishment for his offense but is a reasonable condition which the State may attach to this right of a prisoner. On balance, we must say that the District Court's result, if not all its rationale, on the substantive issue is difficult to fault. We are in doubt, though, that in the present state of the case there has been that exhaustion of state remedies by the petitioner which will authorize a federal court to entertain at this time the issue in a habeas proceeding under § 2254, 28 U.S.C.

Our hesitancy in sustaining the granting of the writ is prompted by the argument vigorously asserted by the respondent that there has not been an exhaustion of state remedies. Exhaustion of state remedies as an essential predicate for the maintenance of a federal proceeding by a state prisoner under § 2254, 28 U.S.C., rests not only on salutary principles of comity but on the positive command of the statute itself. Until the State has been accorded a fair opportunity "by any available procedure" to consider the issue and afford a remedy if relief is warranted, federal courts in habeas proceedings by state prisoners should stay their hand. Gilstrap v. Godwin (4th Cir. 1975) 517 F.2d 52, 53. This was forcefully declared in Picard v. Connor (1971) 404 U.S. 270 at 275-6, 92 S.Ct. 509, 512, 30 L.Ed.2d 438, where the Court said that, if exhaustion of State remedies is to be had, "the federal claim must be fairly presented to the state courts" and "(T)he rule would serve no purpose if it could be satisfied by raising one claim in the state courts and another in the federal courts." And doubts as to whether the issue has been so presented should be resolved against exhaustion, save in the exceptional case to which we refer later. See Williams v. Missouri Department of Corrections, supra.

It is conceded that the petitioner has not filed any petition in habeas corpus in the State Court. The petitioner's action in State Court was in mandamus and the writ of mandamus was denied by the State Court without any clear indication whether the denial was on the absence of jurisdictional grounds in mandamus, or on the merits of the substantive right to jail-time credit. The District Court reasoned that the decision of the Virginia Supreme Court was not on jurisdictional grounds...