Kleczka v. Commonwealth of Massachusetts

• Decision Date: 30 September 1966
• Docket Number: Misc. No. 66-46-S.
• Citation: 259 F. Supp. 462
• Parties: George J. KLECZKA, Petitioner, v. COMMONWEALTH OF MASSACHUSETTS and Palmer C. Scafati, Superintendent, Massachusetts Correctional Institution, Walpole, Respondents.
• Court: U.S. District Court — District of Massachusetts

259 F. Supp. 462

George J. KLECZKA, Petitioner, v. COMMONWEALTH OF MASSACHUSETTS and Palmer C. Scafati, Superintendent, Massachusetts Correctional Institution, Walpole, Respondents.

Misc. No. 66-46-S.

United States District Court D. Massachusetts.

September 30, 1966.

George J. Kleczka, South Walpole, Mass., for petitioner.

Willie J. Davis, Asst. Atty. Gen., Boston, Mass., for respondents.

OPINION

GARRITY, District Judge.

The petitioner, George J. Kleczka, by petition for a writ of habeas corpus on which he has been permitted to proceed in forma pauperis, seeks release from the Massachusetts Correctional Institution at Walpole, generally called "State prison," where he is confined under a 1960 sentence which he has been serving in installments. Twice he has been released on parole and twice returned to State prison as a parole violator. Meanwhile he has been incarcerated and paroled on other charges for periods of time which he contends should have been credited against the 1960 sentence and which have not. He claims that his 1960 sentence, which the respondent considers will have been fully served about November 21, 1966, has already been fully executed.

The facts are not in dispute. The petitioner was sentenced on October 13, 1960 to imprisonment for not less than three nor more than five years for having damaged a safe containing money and valuables owned by another. On December 14, 1961 he was granted parole. While on parole he passed worthless checks and was arrested for larceny on May 28, 1963, his parole having been revoked the previous day. The warrant of revocation was lodged at the jail where he was being held in lieu of bail on the larceny charges on which he received twelve concurrent 3 to 5 year sentences on June 12, 1963, effective as of the date of arrest. The warrant of revocation followed him to State prison and was not served upon him until June 25, 1965, when he received a "paper parole," i. e., a parole without release from custody, on the 1963 sentences The petitioner was held in State prison on the basis of the 1960 conviction from June 25, 1965 until November 18, 1965, when he was paroled from the 1960 sentence for a second time. During this five-month period of imprisonment he was technically paroled on the 1963 convictions. After November 18, 1965 he was at liberty on parole on both the 1960 and 1963 sentences.

However, on February 11, 1966 he was again arrested, this time on charges of breaking and entering, and held for the grand jury in lieu of bail.¹ On February 15, revocation warrants relating to the two earlier offenses were lodged at the jail. On March 11, 1966, he made bail, whereupon the warrant based upon the 1963 sentence was served upon him and he was returned to State prison. The warrant based upon the 1960 sentence again followed him to State prison where it was lodged but not served upon him until July 26, 1966, when he completed service of the 1963 sentence. At that time the 1960 warrant became operative again, and he commenced serving the third installment of imprisonment on that sentence, which will terminate about November 21, 1966.

Recapitulating, by February 11, 1966 the petitioner had, in the respondent's view, earned credit against the 1960 sentence totalling approximately 40 months, either in prison or while behaving himself on parole. Under G.L. c. 127 § 149 as amended, time on parole until revocation thereof is considered as part of the term of sentence and is not forfeited by a parole violation. As computed by the respondent, the petitioner had served approximately 14 months in prison, 18 months on authorized parole, 5 months back in prison, and 3 months again on parole. Allowing for deductions, pursuant to G.L. c. 127 §§ 129 and 129A, for good conduct and blood donations, he had approximately 4 months left to serve after his arrest in February of this year. Thus it is apparent that the petitioner had completed his 1960 sentence if time served in prison on the 1963 sentences should have been credited against it or if he should have been returned to prison in February 1966² on both revocation warrants instead of only on the warrant based upon the 1963 sentences.

While serving the 1963 sentences for passing worthless checks the petitioner attacked the 1963 judgments in the state courts. In December 1963 he filed a bill in equity in the Supreme Judicial Court, which that court transferred to the Superior Court, where the petitioner amended it such that it became a petition for a writ of mandamus against the Massachusetts Parole Board and Massachusetts Department of Correction. After responsive pleadings were filed, and upon the advice of his court-appointed attorney, the petitioner abandoned that approach and on April 6, 1964 filed a petition for a writ of error in the Supreme Judicial Court. He contended that the 1963 sentences were illegal because imposed at a time when he should have been reimprisoned on the 1960 sentence inasmuch as his parole from that sentence had been revoked. A single justice ordered the 1963 judgments affirmed and the petitioner filed a bill of exceptions. The case was decided by the full bench on January 4, 1966, Kleczka v. Commonwealth, 1966 Adv.Sh. 31, 213 N.E.2d 390. The court's opinion is incorporated by reference in the applicant's petition to this court. It overruled his exceptions, holding, "There was no error in lodging the revocation warrant (without serving it) with the institutions having him in confinement either awaiting trial for the later offenses or under the later sentences." The court relied on G.L. c. 127 § 149, as amended, emphasizing the last sentence thereof.³ The petitioner sought reconsideration and a rehearing, which were denied June 1, 1966. He did not petition the Supreme Court of the United States for a writ of certiorari. Throughout the appeal proceedings in the Supreme Judicial Court the petitioner was represented by counsel. In this court he is appearing pro se.

In this court the petitioner alleges generally that he is illegally confined in violation of the 5th and 14th amendments to the Constitution of the United States, and prays that the 1960 sentence be vacated and set aside. His specific contentions are (a) that the state court misinterpreted section 149 of Chapter 127, as amended, and erred in holding that execution of the 1960 sentence was properly suspended while he was imprisoned in connection with the 1963 offenses, and (b) that on March 11, 1966 both parole revocation warrants should have been served upon him rather than only that based upon the 1963 sentences and, if both had then been served upon him, he would have completed serving the 1960 sentence by now. In connection with his petition the applicant filed a motion to stay execution of the unserved portion of his 1960 sentence pending decision on the merits of his petition for habeas corpus. I denied this summarily at the hearing. The court's power under Title 28 U.S.C. § 2251, refers only to State court proceedings, not to service of sentences imposed by a State court. To grant the petitioner's motion would be equivalent to awarding the writ on the merits.

The petition alleges in general terms violations of fundamental rights of the petitioner under the federal constitution, as is required by 28 U.S.C. § 2241(c) (3) and numerous decisions of the Supreme Court of the United States, e. g., Brown v. Allen, 1953, 344 U.S. 443, 73 S.Ct. 397, 97 L.Ed. 469, but the facts upon analysis do not disclose a federal constitutional claim. While alleging illegality of the 1960 sentence, no complaint is made regarding the terms of the sentence or any steps leading to it. The petitioner's real complaint relates to execution of the 1960 sentence and in particular its having been suspended while he was imprisoned in connection with a subsequent offense.

The principal argument of the petitioner is that the Supreme Judicial Court of Massachusetts in his case before it, Kleczka v. Commonwealth, 1966 Adv.Sh. 31, 213 N.E.2d 390, misconstrued G.L. c. 127 § 149, as amended, and misplaced reliance upon a precedent, Harding v. State Board of Parole, 1940, 307 Mass. 217, 220-222, 29 N.E.2d 756, which held inter alia that under § 149 service of a parole revocation warrant should be withheld until completion of a sentence for a subsequent offense. The petitioner contends that the Harding decision was overruled in pertinent part by a 1946 amendment to the statute. Previous to 1946, a consequence of revocation of parole was that time served on parole would be forfeited, i. e., not credited against the sentence. The 1946 amendment provided that only time between revocation and return to the prison to which originally sentenced would be forfeited. The amendment also added the last clause of the last sentence, "and the time served by him upon any sentence under which he is so confined shall not be considered as any part of the term of his original sentence." The petitioner argues that, to be consistent with its liberalizing the forfeiture rule, the legislature must have intended that a revocation warrant should be served immediately on a parolee confined in lieu of bail as distinguished from one confined pursuant to a subsequent sentence.

With respect to this question, the Court does not rule that the petitioner has failed to exhaust available State court remedies. True, he did not, before the Supreme Judicial Court, challenge directly the validity or manner of execution of the 1960 sentence, but attacked only the 1963 sentences. However, his argument in the Supreme Judicial Court was that they were...