Stevens v. Ciccone, 19149-1.
Decision Date | 01 April 1971 |
Docket Number | No. 19149-1.,19149-1. |
Citation | 324 F. Supp. 97 |
Parties | Junior Willie STEVENS, Petitioner, v. Dr. P. J. CICCONE, Respondent. |
Court | U.S. District Court — Western District of Missouri |
Junior Willie Stevens, pro se.
Bert C. Hurn, U. S. Atty., Frederick O. Griffin, Jr., Asst. U. S. Atty., Kansas City, Mo., for respondent.
Petitioner, a prisoner in the Medical Center for Federal Prisoners, has filed a petition for habeas corpus in which he contends that he is presently entitled to release from confinement. Paragraph 4 of the petition alleges that petitioner was sentenced on March 21, 1967, to a term of 4 years imprisonment for violation of the Dyer Act, 18 U.S.C. § 2312. In addition, the petitioner was on December 18, 1969, sentenced to a term of 30 days imprisonment (to be served consecutive to the earlier sentence) for the offense of escape from federal custody, 18 U.S.C. § 751(a) (Respondent's Exhibit No. 2). The petitioner further alleges that on April 8, 1970, he was released from federal confinement in accordance with 18 U.S.C. § 4164 (Petition, ¶ 9). On June 19, 1970, the United States Board of Parole issued a warrant for the petitioner's arrest (Petition, ¶ 9, Respondent's Exhibit No. 3). The petitioner was arrested on January 14, 1971, and was returned to confinement at the Medical Center for Federal Prisoners on January 28, 1971 (Petition, ¶ 9).
As his sole ground for habeas corpus relief the petitioner contends that 18 U.S.C. § 4164 is unconstitutional as applied to him because it has caused a loss of the statutory good time which he had earned prior to his release (Petition, ¶¶ 9, 10). The challenged statute and its companion statute, 18 U.S.C. § 4163, provide in pertinent part:
The constitutionality of 18 U.S.C. § 4164 has been specifically upheld. See Chief Judge Becker's opinion in Gregory v. United States Board of Parole, 308 F. Supp. 258 (W.D.Mo., 1969), and the cases discussed at p. 261 as well as this Court's unreported opinion in Wegman.
A forfeiture of "earned good time" pursuant to 18 U.S.C. § 4165 is not an absolute and irrevocable forfeiture. Section 4166 provides that "the Attorney General may restore any forfeited or lost good time or such portion thereof as he deems proper upon recommendation of the Director of the Bureau of Prisons."
It is clear, however, that the petitioner cannot litigate the question of whether his "lost good time" or any portion thereof should be restored until he has made an appropriate application to the Director of the Bureau of Prisons for a recommendation to be made to the Attorney General pursuant to Section 4166.
In other words, the petitioner must exhaust his administrative remedies before applying for judicial relief. See Gilchrist v. United States, 427 F.2d 1132, at p. 1133 (5th Cir., 1970) where it was stated:
Before a prisoner can avail himself of judicial review for loss of...
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Quarls v. State of Missouri
...713 (1965); Frierson v. Rogers, 289 F.2d 234, 235 (5th Cir. 1961); Hedrick v. Steele, 187 F.2d 261, 263 (8th Cir. 1951); Stevens v. Ciccone, 324 F.Supp. 97 (W.D.Mo.1971); Plymale v. Coiner, 302 F.Supp. 1272, 1274 (N.D.W.Va.1969); and United States ex rel. Ostin v. Warden, Federal Detention ......