Thompson v. Graham

• Decision Date: 12 December 1956
• Docket Number: No. C-179-55.,C-179-55.
• Citation: Thompson v. Graham, 147 F.Supp. 150 (D. Utah 1956)
• Parties: Phillip THOMPSON, Petitioner, v. Marcell GRAHAM, Warden Utah State Prison, Respondent.
• Court: U.S. District Court — District of Utah

147 F. Supp. 150

Phillip THOMPSON, Petitioner, v.Marcell GRAHAM, WardenUtah State Prison, Respondent.

No. C-179-55.

United States District Court D. Utah, Central Division.

December 12, 1956.

Phillip Thompson, pro se.

E. R. Callister, Jr., Atty. Gen. of the State of Utah, Walter L. Budge, Asst. Atty. Gen. of the State of Utah, for respondent.

CHRISTENSON, District Judge.

Petitioner, a state prisoner, asserts that a state statute reducing good-time allowances is being given an ex post facto application as to him and that he is being deprived of his liberty without due process of law.The State's motion to quash a similar petition heretofore was granted on the ground that the petitioner had not exhausted his state remedies, Thompson v. Graham, D.C.D.Utah, Central D. 1956, 138 F.Supp. 544.Petitioner has fruitlessly pursued those remedies to the required extent, a writ of certiorari to the Supreme Court of the United States now having been denied, Thompson v. Graham, 352 U.S. 849, 77 S.Ct. 69.

Admissions in the return of the respondent warden to the writ issued in response to the second petition, documentary evidence, and stipulations of fact at the hearing establish the following facts: On November 25, 1946, petitioner pled guilty in the state court to a charge of murder in the second degree and was sentenced to a fixed term of sixteen years.On December 2, 1946, the petitioner commenced service of this sentence in the Utah State Prison.At the time of the commission of the offense and when he entered his plea of guilty he had the understanding that if he conducted himself properly he would be entitled to good time in accordance with the schedule of good-time allowances then in effect.Comp.Laws Utah 1943, § 67-0-11.His conduct while in prison has been such as to entitle him to whatever good-time allowances are applicable and he has never been deprived by his conduct of good time under either the old or the new schedules.If he were granted good time under the old schedule, his sentence would have expired on or about October 3, 1955.However, in 1951the statute with regard to good time was amended, whereby allowable good time was substantially reduced.Laws of Utah 1951, Ch. 74, § 1,Utah Code Annotated 1953, § 77-62-10.Since the effective date of the new legislationthe respondent warden and the state Board of Pardons have applied that reduced schedule of good-time allowances.By such application the petitioner would not now be entitled to his release.He is still confined by the respondent.

It is a reasonable and necessary inference from the evidence and the entire tenor of the argument, and the Court finds, that the failure to release the petitioner has not been by reason of any exercise of discretion by the Board of Pardons based upon petitioner's conduct or any question as to his rehabilitation, but has been solely as a result of the idea, now urged by counsel for the State, that the good-time allowance cannot be considered a part of the original sentence, and that the law with regard to that allowance may be changed at any time and the new law applied without infringement upon constitutional rights.It is because, and only because, of this contention that the respondent now restrains petitioner of his liberty.

The State calls attention to art. VII, § 12, Constitution of Utah, granting authority to the Board of Pardons to remit fines and forfeitures, commute punishments and grant pardons after conviction in all cases except treason and impeachment; it relies upon Cardisco v. Davis, 91 Utah 323, 64 P.2d 216;McCoy v. Harris, 108 Utah 407, 160 P.2d 721andConnors v. Pratt, 38 Utah 258, 112 P. 399, for its contention that provision for good time off cannot be a part of the sentence.It is argued that the time of the release of a prisoner or whether any good time is to be allowed is wholly in the discretion of the Board of Pardons whose decision cannot be curtailed by the Legislature, and that prisoners are not entitled to any good-time allowances as a matter of law.

It is unnecessary to dwell upon these contentions, or the fact that the authorities relied upon by the State involve indeterminate sentences for the most part rather than the type of sentence imposed upon Thompson in accordance with the existing law governing the punishment for second degree murder, Comp.Laws of Utah 1943, § 103-28-4,Utah Code Annotated 1953, § 76-30-4.Nor is it necessary to explore the interesting questions left unanswered by the Utah decisions, whether the Board of Pardons could legally terminate a sentence, without reference to the parole or pardoning power, prior to the expiration of the minimum term imposed by the Court or provided by the Legislature, or whether it could retain in custody a prisoner beyond the maximum term imposed by the Court or provided by the legislative enactment.The answers seem obvious.Yet we are not concerned here with the power of the Board of Pardons but rather with the idea that this power has been limited by the retroactive application of a new good-time schedule.It is interesting to note in passing that when a retroactive application was directly involved and the contentions between the State and the prisoner were reversed, the Supreme Court of Utah recognized the principle that the law existing at the time the offense was committed governed rather than subsequent legislation with reference to good time.Ex parte Clawson upon Habeas Corpus, 5 Utah 358, 15 P. 328.

It is true that we must accept the meaning of the statestatute as interpreted by the highest court of the state, Hebert v. State of Louisiana, 272 U.S. 312, 47 S.Ct. 103, 71 L.Ed. 270, but the consequences of that meaning, the validity of the statute as so interpreted, and its application to the petitioner cannot be finally determined by the state tribunal contrary to constitutional rights and limitations.As stated in Lindsey v. State of Washington, 301 U.S. 397, 57 S.Ct. 797, 798, 81 L.Ed. 1182:

"This Court, in applying the ex post facto prohibition of the Federal Constitution to state laws, accepts the meaning ascribed to them by the highest court of the state.But when their meaning is thus established, whether the standards of punishment set up before and after the commission of an offense differ, and whether the latter standard is more onerous than the earlier within the meaning of the constitutional prohibition, are federal questions which this Court will determine for itself.Cummings v. State of Missouri, 4 Wall. 277, 320, 18 L.Ed. 356, reversingState v. Cummings, 36 Mo. 263, 273;Kring v. State of Missouri, 107 U.S. 221, 223 et seq., 2 S.Ct. 443, 27 L.Ed. 506.To answer them we compare the practical operation of the two statutes as applied to petitioners' offense."

Technical distinctions are unsound where retroactive legislation results in a serious disadvantage to a substantial right of a prisoner under the law as it stood when the offense was committed.SeeCummings v. State of Missouri, 71 U.S. 277, 4 Wall. 277, 18 L.Ed. 356.A law is ex post facto, within the meaning of the Constitution, when passed after the commission of...