Smith v. Satran
| Decision Date | 17 July 1980 |
| Docket Number | No. 726,726 |
| Citation | 295 N.W.2d 118 |
| Parties | Charles Edward SMITH, Petitioner, v. Winston SATRAN, Warden, North Dakota State Penitentiary, at Bismarck, NorthDakota, Respondent. Crim. |
| Court | North Dakota Supreme Court |
Charles Edward Smith, pro se.
Edwin F. Zuern, Asst. Atty. Gen., Bismarck, for respondent.
Phillip J. Brown, Sp. Asst. Atty. Gen., Bismarck, for North Dakota Parole Department, amicus curiae.
This is an application for a writ of habeas corpus. Charles Edward Smith alleges that he is being unlawfully held in the penitentiary beyond the expiration of his sentence because of unconstitutional or illegal deprivation of "good-time," and urges that this court exercise original jurisdiction and order his release. We decline to do that and we quash the writ.
Whether or not the warden has wrongfully deprived Smith of the benefits of good-time under the provisions of Chapter 12-54, NDCC, 1 is a mixed question of fact and law. There has been no evidentiary hearing from which we can extract facts. Although Smith has subscribed and sworn to his application and his brief before a notary public, there are no stipulated facts or affidavits upon which this court can base a decision on the merits without assuming certain facts. An application under the Uniform Post-Conviction Procedure Act would have afforded the means to supply the necessary facts.
In paragraph # 1 of the syllabus by the court in McGuire v. Warden of State Farm, Etc., 229 N.W.2d 211 (N.D.1975), we held:
The reference in McGuire to § 87 of the North Dakota Constitution was prior to the amendment of Article IV, The Judicial Article, in 1976. The only reference to habeas corpus writs from the Supreme Court in the present Judicial Article is by inference found in § 86 that the Supreme Court shall "have original jurisdiction with authority to issue, hear, and determine such original and remedial writs as may be necessary to properly exercise its jurisdiction." 2
We said further in McGuire that the right to petition the Supreme Court for a writ of habeas corpus in its original jurisdiction is still preserved, but that we may decline to exercise our jurisdiction on the basis that appropriate proceedings had not been had in the district court.
". . . the Uniform Post-Conviction Procedure Act was intended to replace, so far as persons arrested for, or convicted of, violations of criminal law are concerned, the habeas corpus statutes." McGuire v. Warden of State Farm, Etc., supra, 229 N.W.2d at 215.
Smith relies upon a statement in Wolff v. McDonnell, 418 U.S. 539, 94 S.Ct. 2963, 41 L.Ed.2d 935 (1974), in his argument that habeas corpus is the appropriate remedy in this case. 3 This case held that, after exhausting all state remedies, federal courts would have jurisdiction by habeas corpus; however, this does not specify the form of the state remedies. 4
Under the North Dakota Constitution, §§ 86 and 92, original and remedial writs should only issue when necessary to the proper exercise of the court's jurisdiction. An appropriate showing has not been made in this case. 5
Smith further argues that pursuant to §§ 27-02-04 and 32-22-04, NDCC, this court should exercise habeas corpus jurisdiction in this case. The pertinent provision in § 27-02-04 states:
The provision in § 32-22-04 upon which Smith relies is: "The writ (habeas corpus) must be granted by the supreme court, or any judge thereof, upon petition by or on behalf of any person restrained of his liberty within this state." Several other provisions in Chapter 32-22 provide added support for Smith's argument.
The argument, however, ignores the Uniform Post-Conviction Procedure Act (Ch. 29-32, NDCC), and our holding in McGuire, supra, that for persons arrested for or convicted of violating a criminal law, the post-conviction remedy has superseded habeas corpus as a remedy in most situations. See also Bushaw v. Havener, 247 N.W.2d 62 (N.D.1976); Kittelson v. Havener, 239 N.W.2d 803 (N.D.1976); and Smith v. State, 236 N.W.2d 632 (N.D.1975), where we have reiterated our holding in McGuire.
In McGuire and Kittelson, supra, we attempted to answer the questions raised because they were unique and needed to be resolved and were fully briefed and argued. In addition, we said in Bushaw, supra :
An interim legislative study of judicial remedies appears to be warranted to eliminate superseded provisions.
Because there are some legal questions which have been briefed and argued here that involve conceded facts and mathematical computation only, it would be an extravagant waste of judicial effort to refrain from dealing with those questions now. We do not wish to leave an impression that we will always seek out a method whereby we will reach the merits without regard to the impropriety of the remedy sought. Without expressly stated circumstances warranting an exception, we will henceforth decline to hear applications for habeas corpus which properly belong under post-conviction remedies.
See Desmond v. U. S. Board of Parole, 397 F.2d 386, 390 (1st Cir. 1968), cert. denied, 393 U.S. 919, 89 S.Ct. 249, 21 L.Ed.2d 206 (1968). Prisoners are not entitled to good-time windfall. Good time is purely statutory. 72 C.J.S. Prisons § 21.
Parole does not ordinarily end or even suspend the sentence. See Hill v. State, 139 Mont. 407, 365 P.2d 44, 95 A.L.R.2d 1261 (1961); 59 Am.Jur.2d, Pardon and Parole, § 10. While some statutory provisions for parole may not contemplate a parole on one sentence so as to permit the prisoner to remain in the prison and to serve another, otherwise consecutive sentence, the North Dakota statute has been regularly interpreted by the Parole Board to permit this type of action. The word "parole" has an ordinary meaning which contemplates termination of confinement. The use of that term in another sense without a full explanation, leads to confusion and misunderstanding. Smith does not contend, however, that he is in any way prejudiced by the parole from his first consecutive sentence and does not seek to have that parole set aside. See generally, 67A C.J.S. Pardon and Parole § 39.
It is conceded that:
(1) On September 1, 1972, Smith was sentenced to seven-to-fifteen years in the state penitentiary with sentence to commence September 1, 1972.
(2) On September 4, 1973, Smith was sentenced to three concurrent...
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...as may be necessary to exercise its jurisdiction, includes the authority to issue original writs of habeas corpus. In Smith v. Satran, 295 N.W.2d 118, 119 (N.D.1980), we impliedly recognized that the 1976 amendment did not remove this Court's authority to issue writs of habeas corpus in exe......
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