Ex parte Urbanowicz

• Citation: 24 F.2d 574
• Decision Date: 28 January 1928
• Docket Number: No. 120.,120.
• Parties: Ex parte URBANOWICZ.
• Court: U.S. District Court — Panama Canal Zone

24 F.2d 574 (1928)

Ex parte URBANOWICZ.

No. 120.

District Court, D. Kansas, First Division.

January 28, 1928.

John A. Chumbley, of Washington, D. C., for petitioner.

Al F. Williams, U. S. Atty., Alton H. Skinner, Asst. U. S. Atty., both of Topeka, Kan., for respondent.

POLLOCK, District Judge.

Petitioner filed his application for a writ of habeas corpus, and the warden of the prison has filed his response, admitting the restraint of petitioner and attempting to justify the same, and the matter stands submitted for decision as to the right of the warden, under the peculiar circumstances of this case, to hold petitioner in confinement. The facts are conceded, and may be briefly summarized, as follows:

Petitioner was charged, tried, and convicted of the crime of embezzlement from the government in the District Court for the District of Montana, and by that court sentenced to confinement in the United States penitentiary at Leavenworth, this state, for a period of 20 years from July 2, 1921. Thereafter the President commuted this period of imprisonment to 12 years. Thereafter, petitioner having served a sufficient period of his time to enable him to apply for a parole to the parole board of the prison, which was in manner and form as by the law and the rules of the prison required, this application was received by the parole board, acted upon, and on the 11th day of February, 1926, he was released from the prison on his parole. This parole was by the Attorney General approved February 8, 1926. Thereafter, and on June 5, 1926, petitioner was arrested on the warrant of the warden of the Leavenworth penitentiary, this warrant commanding the officer executing it to return petitioner to the warden of the Leavenworth prison, but, instead of so doing, petitioner was by order of the Attorney General's office taken to and lodged in the United States penitentiary located at Atlanta, Ga.

Being confined therein, on October 30, 1926, he filed his petition for writ of habeas corpus, which, on application to and hearing before Hon. Samuel H. Sibley, United States judge, was granted, and petitioner was discharged from said prison, and he returned to Cleveland, Ohio, under his parole. Thereafter, and after he had received official authority therefor, petitioner removed from the city of Cleveland to the city of St. Paul, in the state of Minnesota, where, on April 4, 1927, on the receipt of a letter from the president of the parole board requesting him to so do, he came to the Leavenworth prison and appeared before the board, without being arrested on the warrant of the warden. Thereupon the board of parole as then constituted proceeded to revoke his parole in the following manner:

It was not there and then charged against petitioner, or even asserted, any of the terms and conditions upon which his parole had been granted him had been violated or broken by petitioner, but, on the contrary, it is conceded no condition expressed in his parole had been violated or broken. What was then claimed, and all that was or is now asserted in this behalf, is that petitioner, while confined in the prison, before his parole was granted, had done certain things which were unknown to the prison officials or the parole board at the time his application for parole was up and granted, and there is no contention now made that petitioner has done any act subsequent to the granting of his parole which would justify the board in forfeiting his parole.

Coming, now, to the question of the power of the parole board of the Leavenworth prison to revoke the parole of petitioner and reincarcerate him in the prison, as was done in this...