McCormick v. Heritage
| Decision Date | 04 September 1962 |
| Docket Number | Civ. A. No. 7988. |
| Citation | 216 F. Supp. 222 |
| Parties | Carl McCORMICK, Petitioner, v. David M. HERITAGE, Warden, United States Penitentiary, Atlanta, Georgia, Respondent. |
| Court | U.S. District Court — Northern District of Georgia |
Carl McCormick, in pro. per.
Charles Goodson, U. S. Atty., Burton Brown, Asst. U. S. Atty., Atlanta, Ga., for United States.
Application for writ of habeas corpus was filed, rule nisi was issued and a response thereto filed by the Warden. This Court by Order dated July 9, 1962 has pointed out that this application is without merit with the possible exception as to forfeiture of good time.
It may be that this Court should hold that petitioner's allegations of forfeiture of good time are insufficient, same being rather general allegations. See United States v. Pisciotta, 2 Cir., 199 F.2d 603 (2); Voliva v. Bennett, 5 Cir., 201 F.2d 434(1). Considering petitioner's rather lengthy complaint however in its entirety, it probably is sufficient to charge that forfeiture of his good time was arbitrary.
However, before this Court orders petitioner brought into court for a hearing, he must first pursue his administrative remedies pursuant to 18 U. S.C. § 4166. See Lloyd v. Heritage, Warden, D.C., 199 F.Supp. 46.1 This Court will therefore not dismiss this petition, but hold it in abeyance until petitioner shall have filed his application pursuant to 18 U.S.C. § 4166, with the Director of the Bureau of Prisons, seeking his recommendation to the restoration of petitioner's forfeited good time. As the Attorney General under said statute may restore forfeited good time only on the recommendation of the Director. Should the Director decline such recommendation then petitioner may notify this Court, and respondent herein may file such additional pleadings as he may desire.
It is true the Warden has filed with this Court an affidavit dated July 20, 1962 reciting that the official records of the Penitentiary show that petitioner forfeited 180 days good conduct time on September 14, 1961 for misconduct (striking an officer, refusing to submit to a shakedown, insolence, creating a scene on the recreation field August 12, 1961). However, there is no express denial in said affidavit of the charges made by petitioner in his complaint as to the allegedly other reasons for denial of his good time, and the record is not now in condition for the Court to pass any order.
The burden is on petitioner to show by clear evidence that the forfeiture of his good time was caused arbitrarily. The discretion of the Warden...
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Smoake v. Willingham, 8553.
...Court was therefore without jurisdiction to entertain his Petition for Writ of Habeas Corpus. 18 U.S.C.A. § 4166; McCormick v. Heritage, 216 F. Supp. 222 (D.C.Ga.1962); Powell v. Hunter (10 Cir.), 172 F.2d The Petitioner does not allege any facts which show or tend to show that the prison a......
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United States v. Parker, 884.
...by applying for relief to the Director of the Bureau of Prisons. Smoake v. Willingham, supra, 359 F.2d at 387-388; McCormick v. Heritage, 216 F.Supp. 222 (N.D.Ga.1962). Accordingly, the request to proceed in forma pauperis will be denied and the petition for writ of habeas corpus will be ...
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Sexton v. United States, 28837 Summary Calendar.
...unless the prisoner makes a clear showing of abuse of discretion. Smoake v. Willingham, 10 Cir. 1966, 359 F.2d 386; McCormick v. Heritage, N.D.Ga.1962, 216 F.Supp. 222. Appellant has made no such showing here. A review of the record reveals that the court below was not clearly erroneous in ......