McKinney v. Clemmer

• Decision Date: 18 May 1949
• Docket Number: Misc. No. 654.
• Citation: 84 F. Supp. 798
• Court: U.S. District Court — Eastern District of Virginia
• Parties: McKINNEY v. CLEMMER et al.

84 F. Supp. 798

McKINNEY v. CLEMMER et al.

Misc. No. 654.

United States District Court E. D. Virginia, Alexandria Division.

May 18, 1949.

Robert H. McKinney, pro se.

George R. Humrickhouse, United States Attorney for the Eastern District of Virginia, Richmond, Va., for respondents.

BRYAN, District Judge.

This petition for a writ of habeas corpus, to discharge Robert H. McKinney from imprisonment in the District of Columbia Reformatory, at Lorton, Virginia, presents a question of the computation of good conduct time of a prisoner whose term commenced before, and terminates after, September 1, 1948, which is the effective date of the revision of the pertinent section (now 4161) of Title 18, United States Code.

The facts are these. The petitioner was convicted and sentenced in the United States District Court for the District of Columbia to serve from 2 to 6 years, and his term began March 31, 1944; he escaped July 20, 1944; and for escaping, the entire good conduct time earnable by him and amounting to 576 days, was forfeited. This Court sentenced him to 6 months for the latter offense, the term to start at the expiration of the first.

The petitioner contends that at the time of his escape he had only earned 24 days good time, computed at the rate of 8 days per month for the months of April, May and June, 1944, the 3 months between the commencement of his sentence and his escape. 18 U.S.C.A. § 710, before revision. He says that the entire good conduct time earnable under the first sentence could not have been lost by his misconduct, because the good time should not have been credited to him except monthly as earned, and that the respondent-custodians acted illegally in crediting the entire earnable good conduct time to him as of the date of his entry, and in consequence have illegally forfeited his entire good time. Following petitioner's manner of computation, his first sentence would have expired August 30, 1948, and with the addition of the 6 months sentence for escape, he would have been entitled to release on March 27, 1949.

As the law stood prior to September 1, 1948, the petitioner's position is without foundation. Carroll v. Zerbst, 10 Cir., 76 F.2d 961, 962. The courts have unanimously approved the administrative interpretation of the relevant statutes, 18 U.S.C.A. §§ 710, 713 now §§ 4161, 4163, 4165, that immediately upon commencement of his term the prisoner is to be credited with the entire possible good conduct time deduction, and that upon his commission and conviction of an offense during his term, he forfeits all of the credit. Carroll v. Zerbst, supra. The whole of the good conduct time, it is said, is credited conditionally and in advance, subject to be withdrawn for misconduct. United States v. Nicholson, 4 Cir., 78 F.2d 468, 470, certiorari denied 296 U.S. 573, 56 S.Ct. 118, 80 L.Ed. 405; Aderhold v. Perry, 5 Cir., 59 F.2d 379.

But do the new terms of the revised Title 18 U.S.Code, as contained in section 4161 and directing that the good conduct time "be credited as earned and computed monthly", rescind to any extent a forfeiture declared pursuant to the prior practice against a prisoner whose sentence began before September 1, 1948, ends afterwards, and whose entire good time was "annulled" before September 1? In our opinion the amendment is prospective only, and the prior forfeiture of the inmate's entire time is not...