Gregory v. United States Board of Parole, Civ. A. No. 17525-3

• Decision Date: 21 August 1969
• Docket Number: Civ. A. No. 17525-3,17602-3.
• Citation: 308 F. Supp. 258
• Parties: Billy Leu GREGORY, Plaintiff, v. UNITED STATES BOARD OF PAROLE, Defendant. Billy Leu GREGORY, Petitioner, v. UNITED STATES of America, Respondent.
• Court: U.S. District Court — Western District of Missouri

308 F. Supp. 258

Billy Leu GREGORY, Plaintiff, v. UNITED STATES BOARD OF PAROLE, Defendant.

Billy Leu GREGORY, Petitioner, v. UNITED STATES of America, Respondent.

Civ. A. Nos. 17525-3, 17602-3.

United States District Court W. D. Missouri, W. D.

August 21, 1969.

Lewis E. Pierce, Pierce & Duncan, Kansas City, Mo., for plaintiff and petitioner.

Calvin K. Hamilton, U. S. Atty., by Frederick O. Griffin, Asst. U. S. Atty., Kansas City, Mo., for defendant and respondent.

BECKER, Chief Judge.

ORDER GRANTING PETITIONER LEAVE TO PROCEED IN FORMA PAUPERIS, DISMISSING PETITION FOR DECLARATORY JUDGMENT AND DENYING PETITION FOR HABEAS CORPUS

Petitioner, presently in state custody in the Jackson County Jail on a charge of burglary, has petitioned this Court for a declaratory judgment declaring the exercise of supervision and control over him by the Board of Parole to be illegal and unconstitutional and has also petitioned for a writ of habeas corpus in Civil Action No. 17602-3 to release him from such supervision and control. Petitioner requests leave to proceed in forma pauperis on his habeas corpus petition. Leave to proceed in forma pauperis will be granted.

Petitioner states that he was convicted in the United States District Court for the Western District of Missouri of violations of Sections 2312 and 2313, Title 18, U.S.C.; that he was sentenced on December 3, 1965, to five years' imprisonment on the former charge and three years' imprisonment on the latter charge; that the sentences were ordered to run concurrently; that petitioner had been arrested by federal authorities on July 14, 1965, and was thereafter continuously in custody of the United States until he was released from the custody of the penitentiary on April 18, 1969, on "mandatory release"; that "pending appeal of his conviction the defendant signed a so-called `election not to commence service of sentence' but remained in the custody of the United States and his said conviction was affirmed on August 11, 1966 by the United States Circuit Court of Appeals for the Eighth Circuit; that his petition for rehearing was denied on September 16, 1966 and on January 17, 1967 the United States Supreme Court denied his petition for Writ of Certiorari". The files and records herein additionally show that petitioner commenced service of sentence on August 11, 1966, when he was received at the penitentiary; and that on June 7, 1967, the sentencing division of this Court entered an order modifying petitioner's sentence "to reflect the time petitioner was confined in jail pending trial and decision on appeal; and accordingly the original setence (sic) is hereby reduced by 394 days."

Petitioner states the following as grounds for his allegation that he is being held unlawfully:

"Effective June 22, 1966, Section 3568, Title 18, United States Code provided that `the Attorney General shall give any such person credit toward service of his sentence for any days spent in custody in connection with the offense or acts for which sentence was imposed' and that the mandate from the United States Court of Appeals for the Eighth Circuit was issued and served after the effective date of that statute."

"That Section 4161 of Title 18, U.S. C., providing for the deduction of good time allowances from the sentence and 4164 of the same title, providing that "a prisoner having served his term or terms less good time deduction shall, upon release, be deemed as released on parole until the expiration of the maximum term or terms for which he was sentenced less 180 days" * * * are ambiguous and repugnant for the reason that under Section 4161 it is provided that good time `shall be entitled to a deduction from the term of his sentence', consequently each sentence when imposed is subject to the reduction under Section 4161 and therefore a `term' is the sentence less allowance for good time. Section 4164, therefore, places a man on parole after he has served the maximum term of his sentence and is therefore a violation of due process of law under the Fifth Amendment of the United States Constitution and amounts to a cruel and unusual punishment as prohibited by the Eighth Amendment to the United States Constitution and is in effect a bill of attainder as prohibited by Section 9 of Article I of the Constitution of the United States.

"That the defendant, United States Board of Paroles, is exercising and attempting to exercise authority over the plaintiff until the 2nd day of December, 1969 and that under the laws of the United States, including Section 4161 and 4164 of Title 18, United States Code, the defendant's computation of the time the plaintiff is to remain under their supervision is not computed correctly."

Petitioner's petition for a declaratory judgment should be dismissed. The statutory provision for declaratory judgments in federal courts, Section 2201, Title 28, U.S.C., ordinarily provides remedies in certain controversies where no other remedy is available. Here, habeas corpus is the preferred remedy. A petition for habeas corpus is the proper and adequate remedy by which to challenge the legality and constitutionality of the exercise of control over one's person by the Government. Christopher v. Iowa (C.A.8) 324 F.2d 180, 181. It is the preferred means by which to test the legality and constitutionality of the conditions thereof. Harris v. Harris (W.D.Mo.) 222 F.Supp. 918; In re Baptista (W.D.Mo.) 206 F. Supp. 288. Therefore, the petition for declaratory judgment will be dismissed for the reason that a speedier preferred remedy is available to petitioner in habeas corpus. Christopher v. Iowa, supra.

Considered as a petition for habeas corpus, petitioner's claims are not meritorious. The first contention that Sections 4161 and 4164 are "ambiguous and repugnant" is not meritorious. Section 4164 expressly states that a mandatory releasee shall be deemed "as if released on parole until the expiration of the maximum term or terms for which he was sentenced less one hundred and eighty days." (Emphasis added.) The period for which a mandatory releasee is deemed "as if released on parole" is thereby clearly defined and distinguished from "his term or terms less good-time deduction", at the completion of which he is to be mandatorily released according to Section 4163, Title 18, U.S.C., and deemed "as if on parole" under Section 4164. In Sprouse v. Settle (C.A.8) 274 F.2d 681, 683, the Eighth Circuit Court of Appeals held that the statutory scheme thereby created was intelligible and explained its workings as follows:

"The provisions of § 4161 for good-conduct allowances to a prisoner, and for aggregation of the lengths of the consecutive sentences against him as a basis for arriving at the rate and amount of book-credits necessary to entitle a conditional release to be issued, do not change or affect the legal length of the sentence or sentences against the prisoner, or the time when service of any such sentence is made to commence by the judgment of the court. Sections 4161 and 4162, in conjunction with §§ 4163 and 4164, simply provide a means by which it is possible for a prisoner to achieve a different form or mode of effecting service of part of the term or terms of sentence existing against him, when his accumulation of good time has reached the point where it is entitled to become effective in conditional release."

See also Morneau v. United States Board of Parole (C.A.8) 231 F.2d 829, cert. den. 351 U.S. 972, 76 S.Ct. 1037, 100 L. Ed. 1490; Humphrey v. Wilson (W.D. Mo.) 281 F.Supp. 937.¹ Petitioner is thus subject to being retaken into custody by Board warrant up until the last 180 days of his maximum term of...