United States v. Hunt

• Decision Date: 31 July 1936
• Docket Number: No. 1883-A.,1883-A.
• Citation: 15 F. Supp. 608
• Parties: UNITED STATES ex rel. HUMPHRIES v. HUNT, Warden.
• Court: U.S. District Court — Western District of New York

15 F. Supp. 608

UNITED STATES ex rel. HUMPHRIES v. HUNT, Warden.

No. 1883-A.

District Court, W. D. New York.

July 31, 1936.

Nat J. Humphries, alias James Brown, in pro. per.

John J. Bennett, Jr., Atty. Gen. of New York, and Charles Kennedy, Asst. Atty. Gen., for respondent.

RIPPEY, District Judge.

Invoking the aid of this court by way of habeas corpus under the provisions of section 753 of the Revised Statutes of the United States (28 U.S.C.A. § 453), the petitioner seeks his release from Attica State Prison on the sole ground that the rendition proceedings under which he was brought from the state of Kansas into the state of New York were not in conformity with the provisions of section 5278 of the Revised Statutes of the United States (18 U.S.C.A. § 662), enacted to give effect to article 4, section 2, of the Constitution.

The record in the case shows that the petitioner was indicted, tried, and convicted in the Court of General Sessions, New York County, New York, on a charge of attempted burglary in the second degree as a second offender and was sentenced on September 25, 1913, to a term of nine years and three months in Sing Sing State Prison. On September 25, 1917, the Governor of the State of New York commuted his sentence to a minimum term of five years and a maximum term of nine years and three months without compensation. The commutation was granted upon the sole condition that if he should thereafter be convicted of any felony committed during the period of time between the date of his discharge by reason of the commutation and the date of the expiration of the full term thereby commuted, he should be deemed an escaped convict with respect to said commuted term, and, in addition to the penalty which might be imposed for the felony committed during the interval aforesaid, he should be compelled to serve in the prison or penitentiary within which he might then be confined for such felony, or, if not confined therefor in any prison or penitentiary, then in the Auburn Prison, the portion of the term commuted remaining unserved, without deduction or commutation for good behavior.

After commencement of the service of his sentence in Sing Sing Prison, the petitioner was transferred to Auburn Prison, and on September 30, 1918, was paroled by the New York State Board of Parole to Colonel E. J. Parker of New York City. Subsequently the petitioner went to the state of Pennsylvania by permission. The parole extended to December 25, 1922, which was the date of expiration of his maximum sentence, or to the date of his previous absolute discharge by the Board of Parole for State Prisons. The parole was granted on the condition, among other things, that the petitioner should report to the Superintendent of State Prisons on the first day of each month during such parole for the month preceding upon a blank signed by the petitioner and also by his employer or the person to whom he was paroled. The certificate of parole provided that a violation of that condition should constitute a violation of his parole and make him subject to re-arrest and return to prison. To this, the petitioner agreed. The minutes of the Board of Parole of Auburn Prison under date of February 27, 1919, indicate that he theretofore violated the parole by failure to report, that he was declared delinquent, and that a warrant was issued for his return as a parole violator.

On October 27, 1919, the petitioner was convicted in the city of Philadelphia, Pa., for the crime of burglary and was sentenced for from one to two and one-half years in prison. On March 1, 1921, he was convicted of "receiving stolen goods" in the city of Pittsburgh, Pa., and thereupon sentenced to serve a term of from two years and six months to three years in prison.

On September 8, 1924, the said warrant not having yet been served upon the petitioner as a parole violator, he was convicted in the United States District Court in Cleveland, Ohio, on a charge of robbery and safe-breaking and was sentenced to serve a term of fifteen years in a federal penitentiary, whereupon he was committed to the United States Penitentiary at Leavenworth, Kan. His sentence there expired through time allowance on October 18, 1934. It is asserted that the warrant of the Board of Parole for violation of parole in the state of New York had previously been forwarded to the prison authorities at Leavenworth Prison. This warrant has not been produced in this proceeding. On October 17, 1934, the Governor of the State of Kansas issued a warrant for the arrest of the petitioner and for his delivery to the authorities of New York State on the ground that he was a fugitive from justice. The petitioner had been given no notice that he was wanted by the New York State authorities until two days previous to his discharge and was not represented at the hearing before the Governor. After the warrant was issued by the Governor, petitioner sued out a writ of habeas corpus in the probate court. The record is not clear as to exactly what happened at that time, but the petitioner asserted here, and it is not denied, that he was removed from the state of Kansas into Kansas City, Mo., where he remained in jail overnight, whereupon he was taken to Buffalo and lodged in jail on December 9, 1934, and kept there under instructions that he should not be allowed to be interviewed, and on December 10th was removed to Attica Prison. All proceedings in connection with his removal from the state of Kansas were handled by Sanford Ulrich, one of the investigators of the Division of Parole of the Executive Department of the State of New York. He acted solely on the authority of the warrant issued by the Board of Parole. No record of any of the proceedings in connection with his removal from the state of Kansas has been produced on this hearing except the warrant of the Governor.

Whether he was in fact a fugitive from justice was for the determination of the Governor of Kansas. The warrant of arrest signed by the Governor of Kansas in evidence here is conclusive against petitioner unless he has shown it to be without foundation. Hogan v. O'Neill, 255 U. S. 52, 41 S.Ct. 222, 65 L.Ed. 497; Roberts v. Reilly, 116 U.S. 80, 6 S.Ct. 291, 29 L.Ed. 544. The petitioner asserts, and it is here admitted, that there was no request from the Governor of New York after the production of an indictment or an affidavit made before a magistrate to the Governor of Kansas for his rendition. This was required by the provisions of section 5278 of the Revised Statutes (18 U.S. C.A. § 662). It affirmatively appears that the only authority upon which the Governor of Kansas presumed to act was the warrant of the New York State Parole Board based on petitioner's violation of its rule as to monthly reports. In a case such as this, the federal courts take notice of the laws of the demanding state. Hogan v. O'Neill, supra. Under the laws of New York then in force, the authority presented to the Governor of Kansas was no authority at all. 18 U.S.C.A. § 662; Code Cr.Proc.N.Y. §§ 696, 697, 698 (as added by Laws 1894, c....