Rayborn v. Jones
| Decision Date | 15 August 1960 |
| Docket Number | No. 14090.,14090. |
| Citation | 282 F.2d 410 |
| Parties | Benjamin F. RAYBORN, Plaintiff-Appellant, v. William JONES, Warden, Kentucky State Penitentiary, Defendant-Appellee. |
| Court | U.S. Court of Appeals — Sixth Circuit |
Benjamin F. Rayborn, in pro. per.
William E. Biven, Frankfort, Ky. (John B. Breckinridge, Atty. Gen., and Earle V. Powell, Asst. Atty. Gen., on the brief), for appellee.
Before MARTIN, WEICK and O'SULLIVAN, Circuit Judges.
Rayborn was tried and convicted in the Circuit Court of Jefferson County, Kentucky of the offense of armed robbery. On November 20, 1946 he was sentenced to life imprisonment.
He was later indicted in the United States District Court for the Western District of Kentucky on a fourteen count indictment charging him with receiving stolen property belonging to the Government and possession of firearms transferred in violation of law. He was brought into the District Court on a writ of habeas corpus ad prosequendum for trial on March 18, 1947 and was found guilty and sentenced to thirty years imprisonment.1 He was then returned to the Kentucky authorities.
The District Court ordered that the federal sentence be served concurrently with the state court sentence and that "Upon expiration of the service of the State sentence by defendant, he is to be turned over to the custody of the Attorney General to complete the sentence in this case."
On September 12, 1952, after serving five years, nine months and twenty-one days in the state prison, he was surrendered to the federal authorities by the state warden to commence serving his federal sentence. This was done at the request of the State Attorney General and with the knowledge of the Governor who sent a representative of his office to the state prison to conduct an interview with Rayborn prior to the surrender.
Under Kentucky law, Rayborn would have been eligible for parole after serving eight years in its prison. There remained at the time of his surrender two years, two months and nine days for him to serve in order to become eligible.
Rayborn objected to his surrender to the federal authorities and fought a losing battle to prevent it. Rayborn v. Swope, Warden, 9 Cir., 1954, 215 F.2d 604; Rayborn v. Chandler, Governor, Civil No. 147 (D.C.E.D., Ky.); Rayborn v. Thomas, Warden, Civil No. 3514 (D.C. W.D., Ky.); Rayborn v. Bennett, Civil No. 2402-58 (D.C.D.C.).
Rayborn was taken by the federal authorities to Alcatraz where he served seven years and two months on his federal sentence. He was allowed credit on his federal sentence for 2706 days for good conduct, 2400 days statutory allowance, 276 days for Industrial Good Time and 30 days for meritorious service rendered in fighting a fire at Alcatraz. He became eligible for federal parole on October 19, 1959.
Notwithstanding its surrender, Kentucky had issued a detainer against Rayborn claiming that he must serve an additional two years, two months and nine days before becoming eligible for parole under his life sentence.
Rayborn instituted the present action in mandamus in the District Court on September 21, 1959 to prevent Kentucky from reimprisoning him under the original state court sentence. He claims that the state had satisfied its demands against him and waived jurisdiction over him when it surrendered him to the federal authorities. He further contends that imprisonment by state officials will interfere with his statutory rights to parole under Title 18 U.S.C.A. §§ 4163, 4164.
During the pendency of his case in the District Court he was released from Alcatraz on conditional parole and was arrested on a rendition warrant issued by the Governor of Kentucky. He was returned to the Kentucky State Penitentiary where he is now confined.
Respondent filed a motion to dismiss the petition for mandamus. The District Judge treated the allegations of fact contained in the petition as admitted to be true, as they had not been controverted. He heard the petition on its merits and dismissed it. This appeal followed.
Counsel for respondent claims that under the Constitution of Kentucky only the Governor could pardon Rayborn and that the action of the state officials in surrendering Rayborn to the federal authorities was unauthorized and of no legal force and effect. He asserts that Kentucky has an unsatisfied judgment of conviction which it has a right to enforce.
At the outset, we are confronted with the question whether the remedy of mandamus is available to petitioner. Before this extraordinary writ can issue, petitioner must establish that he has a clear and certain right and that the duties of respondent...
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