United States v. Garfinkel, 9399.

• Decision Date: 04 March 1948
• Docket Number: No. 9399.,9399.
• Citation: 166 F.2d 887
• Parties: UNITED STATES ex rel. FORINO v. GARFINKEL.
• Court: U.S. Court of Appeals — Third Circuit

166 F.2d 887 (1948)

UNITED STATES ex rel. FORINO v. GARFINKEL.

No. 9399.

Circuit Court of Appeals, Third Circuit.

Argued December 4, 1947.

Decided March 4, 1948.

Maurice A. Roberts, of Philadelphia, Pa. (Owen M. Burns, U. S. Atty., of Erie, Pa., and Edward C. Boyle, Asst U. S. Atty., of Pittsburgh, Pa., on the brief), for appellant.

Premo J. Columbus and Joseph A. Cirillo, both of Pittsburgh, Pa., for appellee.

Before BIGGS, MARIS and KALODNER, Circuit Judges.

BIGGS, Circuit Judge.

The question presented by the instant appeal is a narrow one. The relator, Forino, a citizen of Italy, admitted to the United States for permanent residence, on December 5, 1932, and within five years after his entry, pleaded guilty in the Court of Oyer and Terminer, Allegheny County, Pennsylvania, to an indictment charging him with murder. The court fixed the degree of his guilt as murder in the second degree and sentenced him to imprisonment for a term of not less than eight nor more than sixteen years. On January 11, 1933, a warrant for Forino's arrest was issued by the Secretary of Labor to deport him as an undesirable alien within the purview of Section 19 of the Immigration Act of 1917, as amended, 39 Stat. 889, 8 U.S.C.A. § 155, which provided in pertinent part that "* * * any alien who, after May 1, 1917, is sentenced to imprisonment for a term of one year or more because of conviction in this country of a crime involving moral turpitude, committed within five years after the entry of the alien to the United States * * * shall, upon the warrant of the Secretary of Labor, be taken into custody and deported: * * * Provided further, That the provision of this section respecting the deportation of aliens convicted of a crime involving moral turpitude shall not apply to one who has been pardoned * * *."

The warrant provided, as specified in the Act, that its execution should be deferred until Forino was released from imprisonment. After serving eight years Forino was paroled. Shortly thereafter, and on July 13, 1945, he petitioned the Board of Immigration Appeals for rehearing, asserting that he was no longer subject to deportation by virtue of our decision in Perkins v. United States, 3 Cir., 1938, 99 F.2d 255. The Board rejected this contention and Forino abandoned it. Two weeks later Forino was taken into custody for deportation, but he sued out a writ of habeas corpus. The writ was discharged and though Forino appealed to this court he did not press the appeal.

On December 6, 1945, the Governor of Pennsylvania commuted Forino's maximum sentence from sixteen years to thirteen years and ten days, the sentence expiring on December 15, 1945. Forino then filed another petition for rehearing with the Board of Immigration Appeals, alleging that by reason of the commutation of his sentence he was no longer subject to deportation under Perkins v. United States, supra. The petition for rehearing was denied and Forino was again taken into custody. He again procured a writ of habeas corpus and the court below discharged him from custody. The Officer in Charge has appealed.

Forino did not contend in the court below, nor does he contend in this court, that the commutation of his sentence by the Governor brings him within the purview of this court's decision in Perkins v. United States, supra. His present position is based on Section 181 of the Act of March 31, 1860, P.L. 382, 19 P.S. Pa. § 893, which provided in part: "Where any person hath been or shall be convicted of any felony, not punishable with death, or any misdemeanor punishable with imprisonment at labor, and hath endured or shall endure the punishment to which such offender hath been or shall be adjudged for the same, the punishment so endured shall have the like effects and consequences as a pardon by the governor, as to the felony or misdemeanor whereof such person was so convicted * * *." This statute was repealed by Section 1201 of the Act of June 24, 1939, P.L. 872, 18 P.S. Pa. § 5201, the repealing Act becoming effective on September 1, 1939.¹ Forino points to Section 1102 of the Act of June 24, 1939, 18 P.S. Pa. § 5102, which states that, "The provisions of this act shall not affect any civil rights or remedies now existing by virtue of the common or statute law", and to art. IV, Section 56, of the Act of May 28, 1937, P.L. 1019, 46 P.S. Pa. § 556, the Statutory Construction Act, which provides that "No law shall be construed to be retroactive unless clearly and manifestly so intended by the Legislature." He contends in effect that he has achieved the benefit of a legislative pardon, or at least should be deemed to have acquired the status of a person who has been pardoned by the Pennsylvania Legislature, since otherwise the repealing statute would be given retroactive effect and he would lose his civil right to a legislative pardon, a right which he says was acquired by him prior to the passage of the repealing statute. As an additional point he asserts that to treat the repealing statute as effective when he had served part of his sentence at the time it was enacted is to impose upon him the burden of ex post facto law prohibited by Section 9 of Article 1 of the Constitution of the United States and by Section 17 of Article 1 of the Constitution of Pennsylvania, P.S. The court below agreed with Forino's contentions. See 69 F.Supp. 846.

It must be conceded at the outset by the appellant that if Forino had received a legislative pardon, or presently possesses the status of a person who is entitled to one, he cannot be deported and is entitled to his liberty. This issue was settled for this circuit by our decision in Perkins v. United States, supra. We are unable to perceive, however, how Forino is entitled to such a status. Forino's position in respect to a pardon must, of course, be determined by the law of Pennsylvania. Under that law, as indeed under that of the other States and of the United States, a pardon is simply an act of grace.² See United States v. Wilson, 7 Pet. 150, 8 L.Ed. 640; Commonwealth v. Halloway, 44 Pa. 210, 84 Am.Dec. 431; Commonwealth v. Ahl, 43 Pa. 53. This is true whether the pardon be granted by the executive or by the legislature. No one has or can acquire a vested right to a pardon. If the pardon be from the executive, it is by the will of the executive; if it be legislative, it is granted only under the terms of the applicable statute.

The Legislative Pardons Act of 1860 provided that when the convict "hath endured or shall endure the punishment" to which he has been sentenced, he should be pardoned. The flaw in Forino's reasoning lies in the fact that the access to legislative grace was withdrawn by an act of the Pennsylvania Legislature before he had endured his punishment. The possibility of access to a legislative pardon is not a civil right or a remedy. Forino therefore is not aided by Section 1102 of the Act of June 24, 1939, which preserved civil rights or remedies from repeal. Nor is he aided by art. IV,...