Lipscomb v. Stevens, 15842.

• Decision Date: 04 August 1965
• Docket Number: No. 15842.,15842.
• Parties: Robert Edward LIPSCOMB, Petitioner-Appellant, v. Lewis B. STEVENS, Warden, Respondent-Appellee.
• Court: U.S. Court of Appeals — Sixth Circuit

349 F.2d 997 (1965)

Robert Edward LIPSCOMB, Petitioner-Appellant, v. Lewis B. STEVENS, Warden, Respondent-Appellee.

No. 15842.

United States Court of Appeals Sixth Circuit.

August 4, 1965.

Thomas Khederian, Detroit, Mich., Robert Edward Lipscomb, in pro. per., on brief, for appellant.

William H. Merrill, Chief Asst. U. S. Atty., Detroit, Mich., Lawrence Gubow, U. S. Atty., Detroit, Mich., on brief, for appellee.

Before MILLER and O'SULLIVAN, Circuit Judges, and McALLISTER, Senior Circuit Judge.

McALLISTER, Senior Circuit Judge.

This is an appeal from a judgment entered by the district court denying appellant's petition for a writ of habeas corpus.

Appellant contends that the federal government transferred him from its custody to a state prison while he was serving a sentence imposed by a federal court, and that such a transfer divested or waived any further federal jurisdiction over him.

Appellee claims that the federal government transferred appellant to a state prison in order that he could serve concurrently a sentence imposed by the state, and a sentence imposed by the federal government; that the transfer of appellant to the state prison was made on the explicit written understanding that the federal government would take appellant into custody for service of the remainder of his federal sentence after he had served the state sentence; that no rights of any kind were lost by appellant through the aforementioned federal and state action; that, on the other hand, it was clearly to appellant's advantage to serve the state sentence concurrently with the federal sentence, rather than to serve the state sentence after he had served the federal sentence; and that under Title 18, U.S.C.A. § 4082, the transfer of appellant by the federal government from a federal penitentiary to a state prison was a proper exercise of power of the federal government, and did not constitute a waiver of any further jurisdiction of the federal government over appellant.

The background of the case is as follows: Robert Edward Lipscomb, appellant herein, was convicted in Michigan of unlawfully driving away in an automobile, and sentenced in 1938 to a term of one to five years in a Michigan state prison. He served eleven months of the sentence and was then paroled for a year. While he was on parole, he was convicted in July 1940 of the offense of unlawfully driving away in an automobile, and received a sentence of four and one-half to five years in a Michigan state prison. He was further convicted in August 1940 of armed robbery and received a sentence of fifteen to thirty years in a Michigan state prison for that offense. On January 31, 1950, he was paroled on a four-year parole. However, shortly thereafter he violated his parole and could not be found. A parole violation warrant for him was issued in Michigan on February 15, 1951.

The next notice of his whereabouts which was received in Michigan, was that he had been convicted of the federal crime of passing counterfeit federal reserve notes, and received a sentence of twenty-five years, which he was serving at the federal penitentiary at Leavenworth, Kansas. Upon receipt of this information, a second parole violation warrant was sought by authorities in Michigan and filed with the Warden at Leavenworth. At that time, the Michigan authorities received a letter dated December 5, 1962, from Mr. James V. Bennett, Director of Federal Prisons, stating that appellant was not subject to parole for the federal offense until December 1968; and Mr. Bennett suggested that the State of Michigan take appellant for service of his sentence in Michigan. The State authorities, however, were uncertain about the situation and wrote Mr. Bennett that there was no way of predicting what the Michigan Parole Board might do in the case, and that appellant might conceivably be discharged by the Michigan Board in 1965, leaving three years of the federal sentence unserved. To this communication, Mr. Bennett replied that he could understand the reluctance of the Michigan authorities to accept the return of appellant, but that he would appreciate it very much "even though it might develop it would be necessary for us to return the man to our federal custody three years hence." Mr. Bennett also mentioned that the proposed transfer was suggested by Chief Judge Harper of the United States District Court in St. Louis, Missouri, and that he would like to cooperate, if possible, with the court.

Mr. Bennett had previously informed the Director of Michigan Corrections that Judge Harper had suggested that the federal authorities explore the possibility of arranging for Lipscomb to serve the balance of his federal sentence and his Michigan parole violation term concurrently, and had stated it was his understanding that it would be necessary to transfer appellant to a Michigan prison in order to make concurrent service of his state and federal terms possible.

Further, Mr. Bennett wrote, on January 3, 1963:

"There is a further consideration which is involved. As you probably have heard, we are in the process of `phasing out\' the Alcatraz Institution, and you can well appreciate the problems which are involved in having to try to absorb this population in our other institutions.

"It would be helpful to us if Lipscomb might be in a Michigan Institution, if only for a relatively short time during this period of transition in our program."

To this letter, Mr. Harrison, for the Michigan authorities, replied on January 9 to Mr. Bennett:

"We will accept this man at the State Prison at Southern Michigan. I assume that you will file your detainer with the authorities at that institution.

"Will you kindly let the officials at the State Prison of Southern Michigan, at Jackson, know when you plan to deliver this man."

On January 14, 1963, Mr. Bennett, as Director of Federal Prisons, entered an Order of Transfer of appellant Lipscomb from the federal prison to the Jackson State Prison, in which it was stated:

"To the Warden, United States Penitentiary, Alcatraz, California.

"WHEREAS, in accordance with the authority contained in Title 18, sections 4082, 4085, and 4125, U.S. Code, the Attorney General by the Director of the Bureau of Prisons has ordered the transfer of Robert Edward Lipscomb from the United States Penitentiary, Alcatraz, California, to the State Prison of Southern Michigan, Jackson, Michigan.

"NOW, THEREFORE, you, the above-named officer, are hereby authorized and directed to execute this order by causing the removal of said prisoner, together with the original writ of commitment and other official papers as above ordered and to incur the necessary expense and include it in your regular accounts.

"And you, the warden, superintendent, or official in charge of the institution in which the prisoner is now confined, are hereby authorized to deliver the prisoner in accordance with the above order; and you, the warden, superintendent, or official in charge of the institution to which the transfer has been ordered, are hereby authorized and directed to receive the said prisoner into your custody and him to safely keep until the expiration of his sentence or until he is otherwise discharged according to law.

By direction of the Attorney General James V. Bennett, Director Bureau of Prisons."

Typed on the bottom of the Order of Transfer was this statement:

"For concurrent service of state and federal sentences."

Accordingly, appellant was returned to the Jackson, Michigan, prison on April 12,...