Robinson v. Sartwell

• Decision Date: 16 February 1967
• Docket Number: Civ. A. No. 27618.
• Citation: 264 F. Supp. 531
• Parties: Charles ROBINSON, Petitioner, v. Paul SARTWELL, Warden, Federal Correctional Institution, Milan, Michigan, Respondent.
• Court: U.S. District Court — Western District of Michigan

264 F. Supp. 531

Charles ROBINSON, Petitioner, v. Paul SARTWELL, Warden, Federal Correctional Institution, Milan, Michigan, Respondent.

Civ. A. No. 27618.

United States District Court E. D. Michigan, S. D.

February 16, 1967.

Samuel J. McKim III, Miller, Canfield, Paddock & Stone, Detroit, Mich., for petitioner.

Lawrence Gubow, U. S. Atty., Joel M. Shere, Asst. U. S. Atty., Detroit, Mich., for respondent.

OPINION

FREEMAN, District Judge.

This is a petition for a writ of habeas corpus filed by Charles Robinson, an inmate of the Federal Correctional Institution at Milan, Michigan.

Petitioner and respondent are in complete agreement about the relevant facts. On January 26, 1954, after he had been convicted in this Court of a narcotics violation, Robinson was committed to the custody of the Attorney General for a period of ten years. Having earned credit for good time in the amount of 1383 days, petitioner was released on April 12, 1960, from the Federal Penitentiary in Atlanta pursuant to the mandatory release provision, 18 U.S.C. § 4163. Thereafter he was in the position of a parolee until January 26, 1964, when the full term of his sentence expired. See 18 U.S.C. § 4164.

On July 5, 1962, petitioner was arraigned in Detroit Recorder's Court on a charge of uttering and publishing, stood mute and saw a plea of not guilty entered on his behalf. A month later, he pleaded not guilty to an information setting out the same offense. Trial had originally been slated for August 22, 1962, but because of a series of adjournments, the case did not actually come on until December 27, 1962.¹ On that date, Robinson pleaded guilty to a reduced charge, attempted uttering and publishing, and on January 8, 1963, received a sentence of four to five years in the State Prison of Southern Michigan at Jackson, from which he was subsequently paroled on September 2, 1965.

The respondent concedes that from July 5 to July 9, 1962, Robinson remained in the Wayne County Jail at the request of the Federal Probation Office, which wanted an opportunity to investigate the possibility that he had broken the conditions of his mandatory release, including, of course, a provision that he stay within the law. During this period, petitioner was interviewed by a probation officer, and during the course of the conversation

"confessed his guilt with respect to the state offense of which he was charged to the said Probation Officer, confessing to and informing the said Probation Officer of acts which were later held by the United States Parole Board * * * to have constituted a violation of Charles Robinson's federal `parole.'" Fact Stipulation, ¶ 5.

From July 9 until December 27, 1962, petitioner was on bond while he awaited the disposition of the state charge. During this interval, the Federal Probation Office in Detroit always knew Robinson's whereabouts. In fact, in August, 1962, he visited the Office to inform it of a change in his address. However, he then learned that his parole status had been suspended and that he would no longer have to report to the probation authorities.

Ten days after petitioner had been released on bond, a member of the United States Parole Board signed a parole violation warrant, to which were attached for the benefit of the marshal to whom it was forwarded the following instructions:

"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 the Parole Board."

In accordance with these directions, the process was not served immediately; and the parties are agreed that no one made any effort prior to December 27, 1962, to execute it. Instead, on March 7, 1963, while petitioner was in the state prison, the Board ordered the warrant forwarded to the Jackson warden as a detainer. Upon his parole from the Michigan penitentiary, Robinson was taken into federal custody and committed to the Milan institution, from which he seeks release. Following a hearing before a member of the Parole Board on October 11, 1965, his mandatory release was formally revoked.

The essence of petitioner's claim is that his confinement in Milan was and continues to be unlawful because the federal parole violation warrant against him could have been executed between July 9 and December 27, 1962, when he was not in jail, had already admitted that he had violated the conditions of his release from Atlanta, and could readily have been found by federal authorities.

Robinson makes several arguments, the first of which is founded upon 18 U.S.C. § 4205 providing:

"A warrant for the retaking of any United States prisoner who has violated his parole, may be issued only by the Board of Parole or a member thereof and within the maximum term or terms for which he was sentenced. The unexpired term of imprisonment of any such prisoner shall begin to run from the date he is returned to the custody of the Attorney General under said warrant, and the time the prisoner was on parole shall not diminish the time he was sentenced to serve."

It is said that the warrant naming petitioner was not "issued within the maximum term" of imprisonment which gave rise to his mandatory release—the period ending January 26, 1964,—because its execution was deliberately and arbitrarily withheld for a number of months after it had been signed in July, 1962. Even assuming that the Board acted capriciously, this contention is without merit. In Nave v. Bell, 180 F.2d 198 (6th Cir. 1950), the question was whether a parole violation warrant had been properly issued where it had been signed and mailed to a United States Marshal before the maximum period of confinement expired but was not actually delivered to the executing officer until that term had ended. The Court said (p. 199):

"Under the former statute * * * the warden was authorized to issue his warrant `to any officer.' But in its present form * * * the words `to any officer' have been omitted, so that § 4205 does not in terms make delivery a part of the process of issuing the warrant."

If a warrant need not be delivered for execution within the time specified by section 4205, a fortiori there is no requirement that it be executed during that period. Nave has the effect of rendering outmoded Hyche v. Reese, 61 F.Supp. 646 (S.D.Miss.1945), relied upon by petitioner, in which a warrant was said not to have been issued within the meaning of the predecessor of section 4205 where, although signed, its execution had been suspended at the request of the Parole Board.

Recognizing that this language in Nave runs contrary to his interest, Robinson urges that it should be read in light of the concluding passage of the decision in which the Court observed:

"To permit a parolee to commit a serious breach of parole conditions a day or two prior to the expiration of his maximum sentence when it might in many instances be impossible, within the term of the maximum sentence, to deliver the warrant to the officer who executes it, would not serve the public interest."

There is no indication that this comment was prompted by the factual situation before the Court which made it, let alone that the sentiments expressed in this dictum forced the construction of section 4205 which this Court deems controlling.²

That the logical dichotomy between issuance and execution is honored in applying the probation code counterpart of section 4205 is apparent from United States v. Gernie, 228 F.Supp. 329 (S.D.N.Y. 1964). The proof in that case showed that a probation violation warrant against the petitioner had been signed in due time but had lain in the files of the Probation Office for eleven years until it was finally discovered and served. The Court considered the question before it to be the effect of an unreasonable delay or lack of due diligence in the execution of a "timely issued warrant." 228 F.Supp. 334. It so stated the problem despite the fact that, as it clearly understood, execution had taken place years after the allowable time provided by 18 U.S.C. § 3653 for the issuance of such process.

Underlying Robinson's position with respect to section 4205 is his belief that an instrument purporting to be a warrant cannot be said to have actually been issued as real process when, although signed, it remained in the hands of an officer who had orders not to treat it as a viable writ. Under the facts of this case, however, the Board did not direct that service be delayed past the time at which petitioner's maximum term of imprisonment expired. As of March 7, 1963, the Board certainly wanted the warrant served as soon as possible, and lodged it with the state authorities as a detainer to effectuate this end. It seems, therefore, that Robinson is really suggesting not only that within the period specified in section 4205 should a parole violation warrant be signed and should the Board have the intention of seeing it executed, but also that this intention must be formulated at the moment when the signature is affixed. Obviously, this Court is unwilling to read into the otherwise uncomplicated and forthright language of section 4205 all the complexities which are associated with inquiries aimed at determining mental attitude, and which for centuries have beclouded questions of probate and property law.

Petitioner's second argument rests upon 18 U.S.C. § 4206:

"Any officer of any Federal penal or correctional institution, or any Federal officer authorized to serve

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