Lee v. U.S.

• Citation: 501 F.2d 494
• Decision Date: 01 August 1974
• Docket Number: No. 73-1653,73-1653
• Parties: Norman Eugene LEE, Appellant, v. UNITED STATES of America, Appellee.
• Court: United States Courts of Appeals. United States Court of Appeals (8th Circuit)

Page 494

501 F.2d 494

Norman Eugene LEE, Appellant, v. UNITED STATES of America, Appellee.

No. 73-1653.

United States Court of Appeals, Eighth Circuit.

Submitted May 15, 1974.

Decided Aug. 1, 1974.

John T. Lavey, Little Rock, Ark., for appellant.

Kenneth Stoll, Asst. U.S. Atty., Little Rock, Ark., for appellee.

Before VOGEL, Senior Circuit Judge, GIBSON and WEBSTER, Circuit judges.

GIBSON, Circuit Judge.

Petitioner filed this 28 U.S.C. 2255 action in the United States District Court, Eastern District of Arkansas, ¹ alleging inter alia constitutional deprivation of due process rights by delay of the United States Board of Parole (Board of Parole) in executing a parole violator warrant and in the failure of the Board of Parole to hold a parole revocation hearing in 1968, the original date of the revocation warrant. The facts and actions of various courts are complex and require detailed consideration.

On March 2, 1962, petitioner pled guilty to five counts of violating the Dyer Act (interstate transportation of stolen vehicles, 18 U.S.C. 2312) in the United States District Court, Eastern District of Arkansas. ² Judge Henley sentenced petitioner to a total of nine years imprisonment on this 'arkansas' conviction. On December 26, 1966, petitioner was paroled from the sentence for the 'Arkansas' conviction and, sometime during the spring of 1968, violated his parole. On May 8, 1968, the Board of Parole issued a parole violator warrant, which was delivered to the United States Marshal for the Southern District of Indiana.

For reasons unknown to us, Kansas state authorities had custody of petitioner during July, 1968, and released him to federal authorities in Kansas on July 23, 1968. The May 8, 1968, parole violator warrant was delivered to the United States Marshal for Kansas on August 11, 1968, but was not served on petitioner at this time. On September 19, 1968, a federal grand jury in Kansas indicted petitioner for new violations of the Dyer Act, and on December 5, 1968, petitioner pled guilty to these 'Kansas' counts. The Honorable George Templer, United States District Judge for the District of Kansas, sentenced petitioner to four years imprisonment for the 'Kansas' violations. ³ On February 3, 1969, petitioner commenced serving the four-year sentence for the 'Kansas' conviction. The May 8, 1968, parole violator warrant remained lodged, but was not served, on the petitioner while he served the sentence for the 'Kansas' conviction in the United States Penitentiary in Terre Haute, Indiana. On July 14, 1971, the petitioner completed serving his sentence for the 'Kansas' conviction, and, on that same day, the May 8, 1968, parole violator warrant was served on petitioner at the penitentiary in Terre Haute, Indiana. The Board of Parole pursuant to this warrant arrested the petitioner.

On July 16, 1971, an attorney in Indiana was appointed by a United States Magistrate to represent petitioner at a parole revocation hearing at the United States Penitentiary, Terre Haute, Indiana, which was held August 9, 1971. Petitioner objected to the hearing on the ground that the Board of Parole lacked jurisdiction over petitioner and informed it that he would file a habeas corpus action in the federal district court in Indiana. After the hearing, petitioner's parole granted on December 26, 1966, was revoked. The petitioner commenced serving the remainder of his nine-year sentence for the 'Arkansas' conviction first in Terre Haute and then in Minnesota. Petitioner was paroled again, subject to the supervision of parole authorities in Indiana. He again violated his parole, which again was revoked. The briefs and record do not indicate exactly when this revocation occurred and whether a hearing was held. By last notice to this court, the petitioner is incarcerated in Indiana and serving the remainder of the nine-year sentence for the 'Arkansas' conviction.

On August 26, 1971, while incarcerated in Indiana, the petitioner filed a pro se habeas corpus action before the Honorable James E. Noland, United States District Judge, Southern District of Indiana, Terre Haute Division. According to counsel for petitioner in the reply brief before this court, the basis of petitioner's 'writ of habeas corpus filed with Judge Noland on August 26, 1971, was that the United States Board of Parole executed its May 8, 1968 parole violator warrant on the last day of appellant's Kansas Dyer Act sentence, which caused him to serve the remainder of the sentence imposed on him by Judge Henley on March 2, 1962.' On November 26, 1971, Judge Noland dismissed the habeas corpus action and held that petitioner's proper action was a 2255 motion before the sentencing judge. ⁴ In denying petitioner's motion to appeal in forma pauperis pursuant to 28 U.S.C. 1915(a), Judge Noland on December 21, 1971, explained:

The decision merely said that petitioner was asking the wrong judge for relief. This Court expressed concern over the Parole Board's action in preempting the trial judge's responsibilities in sentencing. The trial judge sentenced as to the Dyer Act violation; the Parole Board decided that the parole violation merited consecutive sentences. This Court feels that the sentencing judge should be able to review that determination. Parole Boards commonly do what petitioner here complains of, and the judge in this case may not care to review the sentencing. However, those determinations should be made by him. This Court therefore recommended that petitioner apply to the sentencing judge for relief, either as per the relief granted in Gernie (United States v. Gernie, 228 F.Supp. 329 (S.D.N.Y.1964)) or under a petition to alter sentence under 28 U.S.C. 2255.

As stated previously, Sec. 2255 is the proper remedy for prisoners in this petitioner's position. It is the finding of this Court that petitioner can make no valid argument on law or facts that his remedy lies in this Court instead of in the sentencing court * * *.

The petitioner did not appeal Judge Noland's dismissal of the habeas corpus action.

On January 3, 1973, petitioner filed the action here involved, a pro se document entitled 'motion pursuant to Title 28 U.S.C. 2255,' which, very liberally construed, was based on the same grounds as his habeas corpus complaint filed with Judge Noland in Indiana. On May 24, 1973, petitioner, this time represented by employed counsel, amended his 2255 motion with express claims that his constitutional rights were abridged due to the delay by the Board of Parole in executing its parole violator warrant. ⁵ Judge Henley first ruled on the original petition and held that petitioner was not entitled to relief since 'there was nothing ambiguous or illegal about the consecutive sentences imposed on petitioner.' Considering the amended petition, Judge Henley first stated:

With all due respect to the District Court in Indiana, this Court gravely doubts that it has power to entertain the allegations of the amended petition under section 2255 or under the 'all writs' provision of 28 U.S.C.A., section 1651(a). Frankly, this Court thinks that the United States District Court in Indiana was the proper legal forum for litigation of the question of the legality of the revocation of petitioner's parole.

Nevertheless, Judge Henley entertained the 2255 motion, 'since petitioner has applied for relief in Indiana and was denied relief on the ground that he should have come here, * * * since time for appeal from the Indiana ruling has long since expired, and since the Government has responded to the amended petition on the merits.' Concerning the delay of the Board of Parole in executing the parole violator warrant, Judge Henley on July 24, 1973, denied relief on the merits. With the added discussion concerning other possible post conviction relief, we hold that the District Court did not have jurisdiction to hear petitioner's claim concerning the delay of the Board of Parole in executing the parole violator warrant.

Jurisdiction is always the first issue to decide; for without the power to hear an action and to execute a decision the sitting tribunal is actually not a court at all. In the overview, courts stay within the legislatively determined limits so that their power is properly used for the citizenry. The overstepping of the jurisdictional limits can lead at least to confusion, at the worst to a corruption of the granted power. Here we have confusion. Such underlying principles on the limits of jurisdiction must continually be realized when dealing with the individual case, for minor inroads to necessary and established principles may destroy the principles a slight step at a time.

Concededly, if the District Court lacked jurisdiction to hear this case, the parties cannot waive jurisdiction by proceeding to a hearing on the merits. Ahrens v. Clark, 335 U.S. 188, 193, 68 S.Ct. 1443, 92 L.Ed. 1898 (1948); United States v. Sahli, 216 F.2d 33, 37 (7th Cir. 1954). The petitioner's filing of this 2255 motion in federal district court in Arkansas and the Government's responding on the merits do not necessarily grant the District Court jurisdiction to hear the claim.

First, petitioner's claim is not properly cognizable under 2255, for the District Court lacked subject matter jurisdiction to hear the motion. We restate the petitioner's two claims made in the District Court and on appeal: (a) the Board of Parole unreasonably and in denial of constitutional rights waited until July 14, 1971, to serve the parole violator warrant; and (b) the Board of Parole did not hold a parole revocation hearing in July, 1968, in violation of Morrissey v. Brewer, 408 U.S. 471, 92 S.Ct. 2593, 33 L.Ed.2d 484 (1972), for the revocation of the parole granted petitioner on December 26, 1966.

In Tanner v. Moseley, 441 F.2d 122 (8th Cir. 1971), this Court was faced with the exact facts and issue presented in petitioner's first claim, and Tanner's rationale applies to both of petitioner's...