Taylor v. United States Marshal for Eastern Dist. of Okl., 8158.

• Decision Date: 01 October 1965
• Docket Number: No. 8158.,8158.
• Citation: 352 F.2d 232
• Parties: Ralph W. TAYLOR, Appellant, v. UNITED STATES MARSHAL FOR the EASTERN DISTRICT OF OKLAHOMA, Appellee.
• Court: U.S. Court of Appeals — Tenth Circuit

352 F.2d 232 (1965)

Ralph W. TAYLOR, Appellant, v. UNITED STATES MARSHAL FOR the EASTERN DISTRICT OF OKLAHOMA, Appellee.

No. 8158.

United States Court of Appeals Tenth Circuit.

October 1, 1965.

Malcolm E. MacDougall, Denver, Colo., for appellant.

E. C. Nelson, Asst. U. S. Atty. (Bruce Green, U. S. Atty., on brief), for appellee.

Before PHILLIPS, BREITENSTEIN and SETH, Circuit Judges.

PHILLIPS, Circuit Judge.

This is an appeal by Taylor from an order dismissing his application for a writ of habeas corpus.

Taylor was sentenced to imprisonment for a term of six years on a conviction for a federal offense by the United States District Court for the Eastern District of Missouri. On July 3, 1963, he was released from the United States Penitentiary at Leavenworth, Kansas, in accordance with 18 U.S.C.A. § 4163.¹

Section 4163, supra, in part here pertinent, reads:

"Except as hereinafter provided a prisoner shall be released at the expiration of his term of sentence less the time deducted for good conduct. A certificate of such deduction shall be entered on the commitment by the warden or keeper. * * *"

18 U.S.C.A. § 4164,² in part here pertinent, reads:

"A prisoner having served his term or terms less good-time deductions shall, upon release, be deemed as if released on parole until the expiration of the maximum term or terms for which he was sentenced less one hundred and eighty days."³

The Act of June 25, 1910, 36 Stat. 820, 18 U.S.C.A. § 717 provided:

"If the warden of the prison or penitentiary from which said prisoner was paroled or said board of parole or any member thereof shall have reliable information that the prisoner had violated his parole, then said warden, at any time within the term or terms of the prisoner\'s sentence, may issue his warrant to any officer hereinafter authorized to execute the same, for the retaking of such prisoner."

Section 3 of the Act of May 13, 1930, 46 Stat. 272, 18 U.S.C.A. § 723c, in part here material, provided:

"SEC. 3. The said board, or any member thereof, shall hereafter have the exclusive authority to issue warrants for the retaking of any United States prisoner who has violated his parole. * * *"

Section 4205 of Title 18 U.S.C.A. (United States Code, Crimes and Criminal Procedure) consolidated § 723c, supra, with that part of § 717, supra, which provided the time within which parole violation warrants might issue. The remaining portions of § 717, supra, were regarded as obsolete. Such § 4205 reads:

"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. June 25, 1948, c. 645, 62 Stat. 854."

Section 4207, 18 U.S.C.A., 62 Stat. 855, provides:

"A prisoner retaken upon a warrant issued by the Board of Parole, shall be given an opportunity to appear before the Board, a member thereof, or an examiner designated by the Board.

"The Board may then, or at any time in its discretion, revoke the order of parole and terminate such parole or modify the terms and conditions thereof.

"If such order of parole shall be revoked and the parole so terminated, the said prisoner may be required to serve all or any part of the remainder of the term for which he was sentenced."

Sections 4205 and 4207, supra, became effective September 1, 1948.

On September 30, 1963, a member of the United States Board of Parole prepared and signed a warrant for Taylor's arrest for violation of the conditions of his release. On October 26, 1963, Taylor was arrested in Tulsa, Oklahoma, by a state officer on a charge of burglary of parking meters. On December 12, 1963, on his plea of guilty to an information charging such burglary, he was sentenced to imprisonment for a term of two years in the Oklahoma State Penitentiary. He was released from state custody on March 6, 1965, and taken into custody under the parole violator's warrant referred to above, by the United States Marshal for the Eastern District of Oklahoma, who returned him to Leavenworth on March 28, 1963. His parole was revoked for violation of the conditions of his release, and he is now incarcerated in the United States Penitentiary at Leavenworth, Kansas.

Taylor set up two grounds for the writ: One, that he had fully served his federal sentence; and two, that the parole violator's warrant was not issued within the maximum term of the federal sentence.

When a federal prisoner is conditionally released as on parole under § 4163, supra, he remains while on parole under federal custody and control. While parole is an amelioration of punishment, it is in legal effect imprisonment, and if during the period of his parole, a parolee is arrested, charged and convicted of a state offense and is confined under a sentence for such offense in a state penal institution, his status during state custody is like that of an escaped prisoner, and during the time of such state custody he ceases to be under federal legal custody and control.⁴ And during the time he is in state custody, the running of his federal sentence and the period of his parole is interrupted and suspended and the jurisdiction of the Board of Parole under his federal sentence is also suspended.⁵

The suspension of the jurisdiction of the Parole Board during state custody does not mean that its jurisdiction is lost. It is merely temporarily suspended and may be resumed again when state custody has terminated.⁶

Even if the running of the maximum term for which Taylor was sentenced had not been interrupted during the time he was incarcerated in the state penitentiary, such maximum term would not have terminated until May 14, 1965, 681 days after he was released as on parole, which date was subsequent to March 6, 1965, the date the Marshal received the parole violator's warrant and took Taylor into custody thereunder. Counsel for Taylor contends, however, that the maximum term for which Taylor was sentenced ended November 15, 1964. He arrives at that result by equating the maximum term of his sentence with his period of parole, which under § 4164, supra, is "until the expiration of the maximum term * * * for which he was sentenced less one hundred and eighty days." Counsel's contention is not well founded. First, the deduction of the 180 days fixes the term of parole, not the remainder of the maximum term of the sentence and if the parolee violates the conditions of his parole during the term thereof, he may be required to serve all or any part...