Taylor v. Simpson

• Decision Date: 23 June 1961
• Docket Number: No. 6675.,6675.
• Citation: 292 F.2d 698
• Parties: J. C. TAYLOR, Warden, United States Penitentiary, Leavenworth, Kansas, Appellant, v. David Lee SIMPSON, Appellee.
• Court: U.S. Court of Appeals — Tenth Circuit

292 F.2d 698 (1961)

J. C. TAYLOR, Warden, United States Penitentiary, Leavenworth, Kansas, Appellant, v. David Lee SIMPSON, Appellee.

No. 6675.

United States Court of Appeals Tenth Circuit.

June 23, 1961.

Howard A. Glickstein, Atty., Dept of Justice, Washington, D. C. (Burke Marshall, Asst. Atty. Gen., Newell A. George, U. S. Atty., Kansas City, Kan., and Harold H. Greene, Atty., Dept. of Justice, Washington, D. C., on the brief), for appellant.

No appearance for appellee.

Before PHILLIPS, PICKETT and LEWIS, Circuit Judges.

PHILLIPS, Circuit Judge.

This is an appeal from an order entered in a habeas corpus proceeding discharging Simpson from the custody of Taylor, Warden of the United States Penitentiary at Leavenworth, Kansas.

On December 5, 1947, Simpson was convicted upon a plea of guilty to an information charging him with a violation of 18 U.S.C. § 73, 1940 Ed.,^* and sentenced to the custody of the Attorney General for a period of six years. He commenced the service of his sentence on April 18, 1949. On March 27, 1953, he was conditionally released, pursuant to 18 U.S. C.A. § 4163, with 751 days of his maximum sentence not yet served. 18 U.S. C.A. § 4164 provides that a prisoner released under § 4163, supra, "shall upon release be treated as if released on parole, and shall be subject to all provisions of law relating to the parole of United States prisoners until the expiration of the maximum term or terms for which he was sentenced." The maximum term of such sentence expired April 17, 1955. The Chief Probation Officer for the Western District of Missouri on June 7, 1954, reported to the Board of Parole that Simpson had left the Western District of Missouri without permission; that he had been advised by the Jacksonville, Florida Probation Officer by letter dated May 1, 1954, that Simpson was leaving that week to return to Kansas City, but that Simpson had not reported to the Kansas City Office and that his present whereabouts was unknown.

The Board of Parole having thus received reliable information from such Chief Probation Officer that Simpson had violated the terms of his conditional release by departing without permission from the territorial limits within which he was to remain during the period of his conditional release, on June 11, 1954, issued its warrant for the retaking of Simpson as a conditional release violator.¹

The warrant was forwarded to the United States Marshal of Kansas City, Missouri, accompanied by a letter containing the following instructions to the Marshal:

"1. 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.

"2. If the prisoner is sentenced or placed on probation on a new federal charge, return this warrant unexecuted. Under any other circumstances the warrant should be executed and this office notified promptly.

"3. If the prisoner is now a fugitive, but later located, the same procedure outlined above should be applied."

The United States Marshal for the Western District of Missouri was unable to apprehend Simpson, and the Parole Board, having learned that Simpson was in the custody of the State of Colorado, on May 26, 1955, directed such Marshal to forward the warrant which had been delivered to him to the United States Marshal for the District of Colorado at Denver, Colorado. On the same date, the Parole Board notified the Colorado Marshal that Simpson was a conditional release violator and requested that he be taken into custody and that the warrant was being forwarded from Kansas City, Missouri. The Colorado Marshal immediately notified the Warden of the County Jail for the City and County of Denver, where Simpson was then confined, of Simpson's status as a conditional release violator and requested that a detainer for him be placed on file. On July 15, 1955, the Parole Board was advised that on June 14, 1955, Simpson had been sentenced by a Colorado State Court to confinement in the Colorado State Penitentiary for a term of from six to ten years for the offense of conspiracy to commit a confidence game. On July 27, 1955, the Colorado Marshal notified the Board of Parole that the detainer lodged with the Denver County Jail had been forwarded to the Colorado State Penitentiary, where Simpson was received on July 22, 1955.

On May 7, 1956, the Colorado Marshal returned to the Parole Board the unexecuted warrant and advised the Parole Board that on May 4, 1956, Simpson had been sentenced by the United States Court for the District of Colorado upon a conviction of the offense of forgery, to imprisonment for a term of five years, to run concurrently with the sentence he was then serving in the Colorado State Penitentiary. On June 29, 1956, the Parole Board returned the warrant to the Colorado Marshal, with a letter stating he would be advised later as to its execution. On August 21, 1958, the Parole Board notified the Colorado Marshal that Simpson was scheduled to be released from the Colorado State Penitentiary on December 7, 1958, prior to the completion of the five-year Federal sentence, and further advised the Colorado Marshal that if this occurred and Simpson was taken into custody by Federal authorities to complete the service of the five-year sentence, the Colorado Marshal should return the warrant unexecuted to the Parole Board. Simpson was in fact released from the Colorado State Penitentiary on November 29, 1958, and was transferred to the United States Penitentiary at Leavenworth, Kansas, to complete the service of his five-year sentence. On December 3, 1958, the Colorado Marshal returned the unexecuted warrant to the Parole Board. On December 9, 1958, the Parole Board forwarded the warrant to the Warden of the United States Penitentiary at Leavenworth, Kansas, with instructions to hold it...