Morden v. United States Board of Parole

• Decision Date: 20 May 1974
• Docket Number: Civ. A. No. 19670-3.
• Citation: 376 F. Supp. 226
• Parties: Jesse MORDEN, Petitioner, v. UNITED STATES BOARD OF PAROLE, and Dr. P. J. Ciccone, Director, United States Medical Center for Federal Prisoners, Springfield, Missouri, Respondents.
• Court: U.S. District Court — Western District of Missouri

376 F. Supp. 226

Jesse MORDEN, Petitioner, v. UNITED STATES BOARD OF PAROLE, and Dr. P. J. Ciccone, Director, United States Medical Center for Federal Prisoners, Springfield, Missouri, Respondents.

Civ. A. No. 19670-3.

United States District Court, W. D. Missouri, W. D.

May 20, 1974.

Bruce C. Houdek, Kansas City, Mo., for petitioner.

Frederick O. Griffin, Jr., Asst. U. S. Atty., Kansas City, Mo., for respondents.

JUDGMENT DENYING PETITION FOR HABEAS CORPUS

WILLIAM H. BECKER, Chief Judge.

This is a petition for a writ of habeas corpus by a federal convict formerly confined in the United States Medical Center for Federal Prisoners at Springfield, Missouri. In his petition herein for habeas corpus petitioner sought to secure his discharge from custody and to remove a detainer lodged against him by the United States Board of Parole. Because petitioner may have stated a claim for relief, respondents were ordered on October 6, 1971, to show cause why the writ of habeas corpus should not issue in this case. Petitioner has been granted leave to proceed in forma pauperis by prior order of this Court on October 6, 1971.

In his petition herein, petitioner states that he was convicted after a plea of guilty in the United States District Court for the Eastern District of Michigan of an "unknown" offense; that sentence was imposed on that conviction on February 10, 1958, to imprisonment for a term of nine years; that he did not appeal from the judgment of conviction or imposition of sentence; that he was represented by counsel at his arraignment and plea, his trial and upon sentencing; that on January 31, 1964, he was mandatorily released from imprisonment; that in October, 1965, the Board of Parole was advised that petitioner had been charged with aiding and assisting in the preparation of a false federal income tax return in violation of Section 7206, Internal Revenue Code of 1954; that based upon that information, a mandatory release violator warrant was issued by respondent on October 22, 1965 and sent to the United States Marshal in Detroit, Michigan, with instructions, by form letter dated October 22, 1965, that "If the prisoner is facing a local charge, or is in jail or on bond, withhold execution of the Warrant until disposition is made or until you receive further instructions from this office . . ." and that "If the prisoner is sentenced on a new Federal charge, return the Warrant unexecuted . . ."; that petitioner remained on bond until June 20, 1966, when he was convicted of the illegal purchase of heroin in violation of Section 4704, supra, in the United States District Court for the Eastern District of Michigan, in which he was sentenced to imprisonment for a period of ten years; that the charge of aiding and assisting in the preparation of a false income tax return was dismissed; that after imposition of petitioner's 1966 sentence, respondent lodged the mandatory release violator warrant as a detainer against petitioner at the United States Penitentiary, Terre Haute, Indiana; that on two occasions petitioner requested that the detainer be removed but both requests were denied by respondent on March 4, 1968, and March 24, 1970, respectively.

In his original petition herein petitioner stated the following grounds for his contention that he was being held in custody unlawfully and that the detainer was unlawfully lodged against him:

"(a) . . . The grounds which petitioner alleges that he is being held in custody unlawfully is that the respondents, inconsistent with the Bill of Attainder Clause, have administered Title 18, U.S C., Sec. 4205 so as to deny petitioner a jury trial and inflict punishment without benefits of the procedural guarantees enumerated in the federal constitution.

"(b) Section 4205 of Title 18 U.S.C., cannot impaire (sic) the power of the President to grant pardon or commutation or good time allowance and said Section 4205 is therefore unconstitutional as interpreted by the Respondents.

"(c) Petitioner has completed service of his sentence.

"(d) Failure of United States Parole Board to execute warrant, denied petitioner the protection of his person as guaranteed by the Fifth Amendment and acted as an act of clemency.

"(e) The phrase within Section 4164 U.S.C. Title 18 as interpreted by the Respondents, that a prisoner having served his term or terms less goodtime deductions shall, upon release, `be deemed as if released on parole does not mean that petitioner is released under the supervision or the authority of the United State Parole Board, nor does said Section 4164 authorize the said Parole Board to confiscate good time credits earned as a matter of right."

Petitioner stated the following as facts in support of the above grounds:

"(a) On February 10, 1958 petitioner was sentenced to a period of nine (9) years imprisonment from the Eastern District of Michigan and on January 31, 1964 was released under Section 4163, being Mandatorily Released from imprisonment after a service of (5) years, eleven (11) months and twenty0 one (sic) (21) days, petitioner having earned a deduction from the term of his sentence for a total of three (3) years, one (1) month and nine (9) days under Sections 4161 and 4162 of Title 18, U.S.C.

"On November 4, 1966, eight (8) years, eight (8) months and twenty-four (24) days after petitioner started service of his sentence, the United States Board of Paroles issued a Warrant for petitioner's arrest as an alleged parole violator, which warrant directed all government agents to execute said warrant and reimprison (sic) petitioner as an alleged violator of parole. However, the said Parole Board also directed along with the Warrant a separate request that if petitioner received a new sentence, not to execute the warrant, but only execute the warrant if petitioner was to be released from custody.

"On March 24, 1970, in response to a letter petitioner wrote to the United States Board of Parole requesting that the detainer warrant be removed, James W. Jones, Case Analyst replied for James R. Pace, Parole Executive that `it was the decision of the Board following a dispositional review of your case, that the detainer should remain on file. The Board has indicated it intends to take you into custody as a Federal violator at such time as you are released from the sentence for which you are now confined.' . . ."

"(B) . . .

* * * * * *

"Briefly (sic) stated, petitioner having `faithfully observed all the rules and has not been subject to punishment, shall be entitled to a deduction from the term of his sentence' as is provided in Section 4161 and under Section 4162, petitioner is allowed a deduction from his sentence for `performing exceptionally meritorious service or performing duties of outstanding importance in connection with institutional operation' and for his employment in industries and camp. . . .

* * * * * *

"(C) . . .

* * * * * *

"Petitioners (sic) sentence started on February 10, 1958 for a period of nine years. On November 4, 1966 the United States Board of Parole issued an alleged parole violators (sic) warrant for petitioners (sic) arrest.

* * * * * *

"From February 10, 1958 to November 4, 1966, plus 180 days is four (4) months and twenty-five (25) days beyond Respondent's authority under Section 4205 to issue a warrant.

* * * * * *

"(D) When petitioner was convicted and sentenced in 1958 to a term of imprisonment it was the judgment and commitment of the court that petitioner was to be committed to the custody of the Attorney General for a period of nine years. The Court did not imply or state that said nine years of imprisonment was to be served upon the whim of the Attorney General at his discretion (sic).

* * * * * *

It is petitioner's contention that the Executive authorities of the United States (U.S. Board of Parole) waived the right to the custody of the petitioner and consented to the action of the United States District Court in petitioners (sic) present sentence when the said Parole Board surrendered their jurisdiction to the sentencing court for sentencing on new federal charges before being returned to the custody of the Attorney General under the parole violation warrant . . .

* * * * * *

"Therefore, it is petitioner's contention that upon petitioner's conviction of the second offense, if the Parole Board had wanted to violate him they not only could have, but had reason to do so. Then at the time of sentence of the second conviction, the sentencing court could have either sentenced him to concurrent or consecutive sentences with the first sentence, and the parole board's failure to execute their warrant before sentence on the second charge, waived their alleged jurisdiction over petitioner, . . .

* * * * * *

"(E) . . .

* * * * * *

"As petitioner has not violated `the rules of the institution', nor is petitioner credited with being imprisoned while mandatorily released, the good time credits earned must still be credited as a deduction from the term of his sentence, therefore the petitioner has completed his nine (9) year sentence imposed on February 10, 1958 and the detainer placed upon petitioner is based upon no legal authority, but only the whim of the parole board."

In the response to the show cause order filed herein, respondents attached copies of the following:

(1) Petitioner's Judgment and Commitment from the United States District Court for the Eastern District of Michigan (Southern Division), dated June 20, 1966, which states that on June 20, 1966, petitioner was sentenced by that court to a period of imprisonment for ten years upon his plea of guilty to violation of Section 4704(a), Title 26, United States Code;

(2) Administrative transfer Order, dated December 14, 1970, which reflects that petitioner was ordered transferred from the United States Penitentiary, Leavenworth, Kansas, to the Prison Camp at the United States Medical Center for Federal Prisoners, Springfield, Missouri;

(3) Mandatory Release Violator Warrant

...