Humphrey v. Wilson

• Decision Date: 05 February 1968
• Docket Number: Civ. A. No. 16719-3.
• Citation: 281 F. Supp. 937
• Parties: George L. HUMPHREY, Petitioner, v. Francis M. WILSON, United States Marshal, Western District of Missouri, Respondent.
• Court: U.S. District Court — Western District of Missouri

281 F. Supp. 937

George L. HUMPHREY, Petitioner, v. Francis M. WILSON, United States Marshal, Western District of Missouri, Respondent.

Civ. A. No. 16719-3.

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

February 5, 1968.

COPYRIGHT MATERIAL OMITTED

J. Whitfield Moody, Executive Director, Legal Aid and Defender Society of Greater Kansas City, Kansas City, Mo., for petitioner.

Calvin K. Hamilton, U. S. Atty., by Charles E. French, Asst. U. S. Atty., Kansas City, Mo., for respondent.

ORDER GRANTING LEAVE TO PROCEED IN FORMA PAUPERIS AND DISMISSING PETITION FOR HABEAS CORPUS WITHOUT PREJUDICE

BECKER, Chief Judge.

Petitioner, a federal military convict (alleged to be a mandatory release parole violator) confined in the Jackson County Jail, Kansas City, Missouri, pending a parole revocation hearing, has filed in this Court a second petition for a writ of federal habeas corpus and for leave to proceed in forma pauperis. Leave to proceed in forma pauperis will be granted.

Petitioner states that after a plea of not guilty, he was tried and convicted by United States Army Courtmartial; that on approximately February 24, 1949, he was sentenced by a court-martial to a term of 30 years; and that during 1950 the sentence was reduced to 13 years after he appealed the judgment of conviction and imposition of sentence to a Board of Review.

Petitioner's allegation that he is being held unlawfully is based on the following grounds:

"(a) More than 15 years has elapsed since service of sentence was commenced, June, 1949 (sic)

"(b) That the parole revocation warrant was issued as a result of a conviction of a municipal ordinance at Columbia, Missouri on or about September 19, 1967 in that he was denied effective assistance of counsel at all stages of the proceedings. (sic)

"(c) That the ordinance under which petitioner was convicted was unconstitutional because it is vague and indefinite." (sic)

Petitioner states that he is presently being illegally restrained because he had "completed and fully satisfied the term of years to which he was sentenced" before the parole violator's warrant had been issued; that the United States Board of Probation and Parole "has no jurisdiction over the person of the petitioner"; that in the alternative "the parole revocation warrant was issued on the ground of and as a result of an illegal conviction suffered by the petitioner under a municipal ordinance" at Columbia, Missouri, on or about September 19, 1967; that the alleged conviction is illegal because petitioner was denied the constitutional right to the effective assistance of counsel at the Municipal Court trial and on appeal of said conviction; that the municipal ordinance under which the petitioner was convicted is unconstitutional because it is vague and indefinite; and that even if the ordinance is constitutional and the conviction legal, "it is not a criminal conviction as defined by the conditions of parole."

Petitioner states that his contention that he was denied the "effective assistance of counsel at his conviction of a municipal ordinance at Columbia, Missouri" was presented to this Court in a petition for a writ of habeas corpus in Civil Action No. 1261; that he was represented in that cause by Granville Collins, Esquire, Circuit Defender; that a hearing was held on that petition; and that the petition was "dismissed by the court without prejudice and without determination of the issues involved on December 11, 1967."

On December 9, 1967, an emergency hearing on the merits of the first petition was held by stipulation of the parties in Columbia, Missouri. At that time, petitioner was serving a 90-day sentence in the Columbia City Jail which was imposed September 15, 1967, and which would expire December 17, 1967. The request of petitioner to hold this special hearing was based on the possible consequences of the challenged Municipal Court conviction upon petitioner's status as a mandatorily released parolee under the federal military court-martial sentence. As a result of petitioner's arrest and conviction in Columbia, the federal authorities issued a mandatory release parole violator's warrant for petitioner's arrest to be executed whenever petitioner was released from the Columbia City Jail.

After the hearing on the first petition for habeas corpus, it became apparent that there was not sufficient time remaining, before the expiration of the municipal jail term, for the complaints contained in that petition for habeas corpus to be presented at an evidentiary hearing and for petitioner's then present and future complaints to be adjudicated. The imminent expiration of the jail term would render moot the principal federal complaints. It was then agreed and directed that the matter should be resolved by the following procedure:

"(1) The petitioner's sentence should be commuted on or about December 12, 1967, by the Municipal Judge.

"(2) Petitioner should forthwith be released from Municipal custody to the federal authorities for arrest on the federal mandatory parole violator arrest warrant outstanding.

"(3) The commutation and release of the petitioner should be without prejudice to the claims of petitioner and of the City of Columbia concerning the validity of the Columbia Municipal Court conviction of September 19, 1967."

In dismissing the petition in Civil Action No. 1261, this Court stated:

"Under these circumstances it is recommended that the United States Board of Parole should not treat the Municipal Court conviction per se as proof of criminal misconduct; rather, the underlying evidence should be examined in the parole revocation proceedings and the conviction disregarded. Otherwise the parole revocation proceedings might later be determined to be tainted and invalid."

On December 20, 1967, petitioner, then in federal custody as a result of the execution of the parole revocation warrant, filed the petition herein by and through The Legal Aid and Defender Society of Greater Kansas City and J. Whitfield Moody, Executive Director and counsel for petitioner. At the same time a request for oral argument on the petition herein was made. On January 3, 1968, an oral argument was held in this cause. This Court requested respondent's counsel to secure additional information regarding petitioner's contentions that he had served his sentence and was entitled to release. The government was requested to state its position on this issue.

After the January 3, 1968, hearing government's counsel forwarded to this Court two letters from the Senior Analyst, United States Board of Parole, dated January 5, 1967, and January 23, 1968, respectively. These letters purport to show a chronological history of the record of the sentence which petitioner is required to serve. The following is a summary of the material portions of those letters:

1. Sentenced June 24, 1949, to a term of 30 years.

2. Sentence reduced to 15 years on August 15, 1950, by Army Clemency action. Full expiration date of June 23, 1964.

3. Released on parole August 17, 1954, with a total of 3,598 days remaining to be served.

4. Parole violator warrant issued on December 7, 1956, and executed on July 13, 1960. Petitioner still accountable for 3,598 days.

5. Sentence reduced to 14 years on August 27, 1964. Sentence then recomputed to reflect 3,232 days as the number of days remaining to be served from July 13, 1960. Full term expiration date is now May 18, 1969.

6. Mandatorily released February 25, 1966, with a total of 1,178 days remaining to be served.

7. Sentence reduced on October 6, 1966, to 13 years, thus reducing the number of days remaining to be served to 813 with a full term expiration date now of May 18, 1968.

8. Mandatory release violator warrant issued on October 3, 1967, and executed on December 12, 1967.

Petitioner's contention that he had completed and fully satisfied the term of 13 years to which he was sentenced prior to the date the parole violator's warrant was executed on December 12, 1967, and that, therefore, the United States Board of Parole is without jurisdiction over the petitioner at the present time is without merit. The records of the United States Board of Parole disclose that the full term expiration date of petitioner's 13-year sentence is May 18, 1968.

Although more than 13 years have now passed since the original sentence was imposed on June 24, 1949, petitioner has still not served his sentence. Petitioner was released on parole on August 17, 1954, with a total of 3,598 days remaining to be served. On December 7, 1956, a parole violator's warrant was issued and was executed on July 13, 1960, thereby holding petitioner accountable for 3,598 days. In this regard, it is noted that the privilege granted to a prisoner whereby he is conditionally released from prison in no way affects the legal length of his term of commitment to custody. A conditional release is a substituted form of release from custody subject to applicable statutes and the rules and regulations administered by the Board of Parole. For misconduct while conditionally released, up and until the last 180 days of his maximum term or terms, he is subject to being retaken into custody on a warrant, having his previously earned good time forfeited, and being required to recommence service of his sentence "at the point where this had been left off when he was conditionally released." Sprouse v. Settle (C.A.8, 1960) 274 F.2d 681. Therefore, on July 13, 1960, petitioner began serving his sentence in prison and the days served thereafter were deducted from the number of days remaining (3,598) when he was released on parole on August 17, 1954.

When petitioner was mandatorily released on February 25, 1966, there remained 1,178 days of the reduced original sentence to be served as a result of a oneyear reduction in the sentence which occurred on August 27, 1964. The fullterm expiration date at this point was May 18, 1969. On October 6, 1966, petitioner received another...