Johnston v. Wright, 10331.

• Decision Date: 07 August 1943
• Docket Number: No. 10331.,10331.
• Parties: JOHNSTON v. WRIGHT.
• Court: U.S. Court of Appeals — Ninth Circuit

137 F.2d 914 (1943)

JOHNSTON v. WRIGHT.

No. 10331.

Circuit Court of Appeals, Ninth Circuit.

August 7, 1943.

Frank J. Hennessy, U.S. Atty., and A. J. Zirpoli, Asst. U.S. Atty., both of San Francisco, Cal., for appellant.

Cecil Wright, in pro. per.

Before GARRECHT, STEPHENS, and HEALY, Circuit Judges.

STEPHENS, Circuit Judge.

Appellee, Cecil Wright, is confined in the United States Penitentiary at Alcatraz, California, by James A. Johnston, warden of that institution. Believing such imprisonment to be illegal, Wright has presented a petition to Honorable William Denman, a member of this court, in which he states the basis of his claim and prays that the writ of habeas corpus should issue and that he be awarded his freedom.

The writ issued and the warden made due return. Thereafter, Wright filed his traverse. After a hearing the judge filed his written "Opinion and Order Granting Petition." The order granting the petition is in words and figures as follows: "* * * Wright's petition to proceed in forma pauperis is ordered granted. He should be discharged from the custody of the Warden; but, pending appeal from this decision, he may be enlarged upon recognizance with security in the amount of Five Thousand Dollars ($5,000.00) for appearance to answer the judgment of the appellate court, provided that unless appeal be taken within ten (10) days from the filing of this order with the Clerk of the United States District Court for the Northern District of California, he shall be enlarged without such recognizance. In the absence of appeal, he shall be discharged from the Warden's custody. William Denman, United States Circuit Judge for the Ninth Judicial Circuit Endorsed: Filed Nov. 10, 1942." No formal findings of fact and conclusions of law were filed, but the opinion contains findings and conclusions of issues deemed necessary to the decision.

The warden appeals.

Petitions of appellee Wright for habeas corpus essentially like the instant one have heretofore been considered and denied by each of the three United States district judges then sitting in the district. In the first presentation, the district court judge, after ruling against the petitioner, denied him the right to appeal in forma pauperis. The second presentation before another district court judge met the same fate. Again the petitioner requested the privilege of appealing in forma pauperis, but this request was denied, not by the hearing judge but by Judge St. Sure, to whom a third petition was subsequently presented, and after a thorough hearing it was discharged. Judge St. Sure made full findings of fact and conclusions of law, which were signed and entered September 11, 1942. No petition to appeal as a pauper was presented in this proceeding, and no appeal was taken. Less than a month thereafter, or on October 7, 1942, Wright presented his fourth petition, the instant one, with the result hereinbefore mentioned.

Heretofore, Wright, under a state court sentence to the Illinois penitentiary at Joliet, Illinois, was released on parole. While so at large, he was again tried and convicted of a crime in an Illinois state court and was sentenced to the penitentiary for from one year to life. While serving under the latter sentence in the Southern Illinois Penitentiary, his trial in the United States District Court at Danville, Illinois, was called. Wright was produced from the Illinois penitentiary for trial in the United States District Court in two separate cases under command of a writ of habeas corpus ad prosequendum. In one case, Wright was convicted on all three counts of the indictment, and under date of September 17, 1930, the judge sentenced him to serve five years on the first count, two years on the second count and three years on the third count, all consecutively, in the United States Penitentiary at Leavenworth, Kansas. A fine was also imposed. According to the face of the records the court provided in its sentence that "* * * the sentences herein imposed shall begin upon the expiration of the sentences which the said defendants are now serving in the Southern Illinois Penitentiary." In large measure the issues of this appeal center in this quoted portion of the sentence.

Thereafter, on the same day in the same court, Wright pleaded guilty to another offense, and he was sentenced to the same federal penitentiary "* * * for the period of five years, said sentence to run and be served consecutively with the sentence imposed against the said defendant in case No. 11032 case noted above, and that said defendant be committed to said Penitentiary pursuant to said sentence."

Thereupon, Wright was returned to the state penitentiary where he remained as a prisoner until released therefrom on the 31st day of October, 1939, under the following facts.

It appears that Wright, while confined in the state prison, sent a letter to the attorney general of the United States under date of September 3, 1939, complaining that the United States was interfering with his possible parole from the Illinois Penitentiary through a "hold" or "detainer" filed against him at the penitentiary. The Acting Director of the Bureau of Prisons, a department of the United States Department of Justice, under the authority of the attorney general, replied by letter to the warden of the Illinois penitentiary, in which he wrote in part as follows: "He Wright states that a Federal detainer has been filed against him at the Illinois State Penitentiary for the purpose of taking him into custody upon his release from state imprisonment and he advises he could secure release on parole provided this detainer were removed. * * * If such release were ordered by the Board, the detainer would induce you to promptly notify the United States Marshal, who would call at your institution and take Wright into custody for service of his Federal sentence." In reply under date of October 12, 1939, the warden wrote that "the fact that he does have a detainer on him will be an important factor in his being given a parole much sooner * * *. Your department will be advised thirty days prior to his release from this institution so that you may have an officer on hand to take him into custody."

It appears from a letter of the Department of Public Safety, Division of Correction, Springfield, Illinois, that the records show as of October 9, 1939, "Paroled on Mittimi Nos. 4984 and 239. Effective when the Federal authorities come for him. If not taken case to be referred back to the Board."

Upon the date of Wright's release from the state penitentiary, which occurred during the calendar month within which these events took place, Wright was taken to the gates of the penitentiary where the United States Marshal took him into custody and conducted him to the federal penitentiary at Leavenworth, from which institution he was regularly removed to the penitentiary at Alcatraz.

It appears from two letters dated August, 1942, that the parole authorities of Illinois consider that Wright will return to Illinois as a parolee, if and when he is released from federal restraint.

From this statement of fact Judge Denman holds that Wright was...