United States v. Merritt, Crim. No. 1973-72.

• Court: United States District Courts. United States District Court (Columbia)
• Writing for the Court: Dale A. Cooter, Cooter & Cooter, Camp Springs, Md., for defendant
• Citation: 478 F. Supp. 804
• Docket Number: Crim. No. 1973-72.
• Decision Date: 17 October 1979
• Parties: UNITED STATES of America v. James T. MERRITT.

478 F. Supp. 804

UNITED STATES of America
v.
James T. MERRITT.

Crim. No. 1973-72.

United States District Court, District of Columbia, Criminal Division.

October 17, 1979.

478 F. Supp. 805

R. Dennis Osterman, Asst. U.S. Atty., Washington, D. C., for plaintiff.

Dale A. Cooter, Cooter & Cooter, Camp Springs, Md., for defendant.

MEMORANDUM AND ORDER

HAROLD H. GREENE, District Judge.

On March 13, 1973, defendant pleaded guilty in this Court to a charge of bank larceny (18 U.S.C. § 2113(b)), with respect to an offense he had committed in October 1967. On June 1, 1973, Judge William B. Jones sentenced him to imprisonment for a period of one to three years, the sentence to run consecutively to a sentence defendant was then serving in the Patuxent Institution in the State of Maryland.¹ The federal sentence was lodged as a detainer with the Maryland authorities, and on three different occasions during his incarceration in Patuxent (in February, April, and July, 1976) defendant requested the United States Marshal's Office to make a determination concerning execution of the detainer. The Patuxent Institution itself likewise requested such a determination in June of the same year, but none of these requests met with success. According to defendant's uncontradicted testimony, he was informed that the U.S. Marshal would not execute the detainer unless compelled to do so by

478 F. Supp. 806

"Washington" or "Patuxent." A memorandum from the Marshal's Office dated June 10, 1976, to the Patuxent Institution advises that no action would be taken on the detainer "until such time that we are notified that defendant is to be released from state custody." No such notification was ever given

Ultimately, on August 27, 1976, defendant was paroled by the Maryland authorities to a halfway house in Baltimore. He has since been released from that halfway house;² he has married; he and his wife have one natural child and have adopted another, partially handicapped child for whose care defendant is responsible; he is an active member of his local church; and he has become part owner and vice president of a construction company.

On June 1, 1979, the U.S. Marshal's Office —apparently as a result of an inquiry from Judge Jones—arrested defendant on the outstanding detainer³ and he has begun to serve the 1973 sentences. In his motion under 28 U.S.C. § 2255 to vacate, set aside, or correct the sentence defendant claims that (1) he is entitled to credit towards his federal sentence for the time spent at Patuxent and therefore to release from confinement, (2) in the alternative, since he is still under the supervision of the Patuxent authorities, service of his federal sentence is premature, and (3) service of his federal sentence under the circumstances of this case amounts to cruel and unusual punishment in violation of the Eighth Amendment to the Constitution. It is unnecessary to reach the second and third contentions, for defendant is entitled to his release⁴ on the first ground.

It is well settled that when a prisoner is released prior to service or expiration of his sentence through no fault or connivance of his own, and the authorities make no attempt over a prolonged period of time to reacquire custody over him, he may be given credit for the time involved,⁵ and he will not be required at some later time to serve the remainder of his sentence. White v. Pearlman, 42 F.2d 788 (10th Cir. 1930); Bailey v. Ciccone, 420 F.Supp. 344, 347 (W.D.Mo.1976); Albori v. United States, 67 F.2d 4 (9th Cir. 1933).⁶ Other courts have reached a similar result under what has been called a waiver of jurisdiction theory. Smith v. Swope, 91 F.2d 260 (9th Cir. 1937); Shields v. Beto, 370 F.2d 1003 (5th Cir. 1967); In re Jennings, 118 F. 479 (E.D.Mo. 1902); United States v. Croft, 450 F.2d 1094

478 F. Supp. 807

(6th Cir. 1971); Lanier v. Williams, 361 F.Supp. 944 (E.D.N.C.1973)

Although different courts have thus chosen different theoretical bases for their conclusions, these conclusions do not differ in practice. A convicted person will not be excused from serving his sentence merely because someone in a ministerial capacity makes a mistake with respect to its execution. Several additional factors must be present before relief will be granted—the result must not be attributable to the defendant himself; the action of the authorities must amount to more than simple neglect; and the situation brought about by defendant's release and his reincarnation must be "unequivocally inconsistent with `fundamental principles of liberty and justice.'" See Piper v. Estelle, 485 F.2d 245, 246 (5th Cir. 1973).

The government does not, essentially,⁷ dispute these principles but argues that defendant has not met the conditions required under the law. That contention is not well taken.

The argument that defendant's present predicament is his own fault may be summarily dismissed. Several times during his stay at Patuxent he contacted the U.S. Marshal's Office in an effort to have the status of his detainer clarified, but each time he met either with indifference or with affirmative declarations that the Marshal was not interested in serving or would not serve the detainer. When defendant was finally released on parole, neither the Maryland authorities nor the U.S. Marshal's Office made any effort to interfere with that release in spite of the outstanding detainer. It is wholly unreasonable to ascribe fault to this defendant because he did not, after that release, continue to badger the authorities to execute the detainer against him. Responsibility for...