United States v. Nicholson, 3907.

• Decision Date: 18 June 1935
• Docket Number: No. 3907.,3907.
• Citation: 78 F.2d 468
• Parties: UNITED STATES ex rel. ROWE v. NICHOLSON, Superintendent of Federal Reformatory Camp.
• Court: U.S. Court of Appeals — Fourth Circuit

78 F.2d 468 (1935)

UNITED STATES ex rel. ROWE v. NICHOLSON, Superintendent of Federal Reformatory Camp.^*

No. 3907.

Circuit Court of Appeals, Fourth Circuit.

June 18, 1935.

Horace G. Marks, of New York City (James E. Wilkinson, of Brooklyn, N. Y., and Maurice B. Gladstone, of New York City, on the brief), for appellant.

H. H. Holt, Jr., Asst. U. S. Atty., of Norfolk, Va. (Sterling Hutcheson, U. S. Atty., of Richmond, Va., and A. E. Gottshall, Atty., Department of Justice, of Washington, D. C., on the brief), for appellee.

Before PARKER and SOPER, Circuit Judges, and CHESNUT, District Judge.

CHESNUT, District Judge.

The appeal in this habeas corpus case is from an order of the District Court refusing to discharge the prisoner, Otis W. Rowe, from the custody of the Superintendent of the Federal Reformatory Camp at Petersburg, Virginia. The principal contention made on behalf of the prisoner is that he has fully served his sentence of imprisonment when the proper deduction therefrom is made for "good conduct" as provided for by USCA title 18, § 710. In opposition thereto the Superintendent of the Reformatory Camp shows that during service of Rowe's sentence, he was released on parole; that he was subsequently re-arrested and imprisoned for violation of the conditions of his parole; and in consequence thereof is obliged to serve the whole remainder of the term of the sentence as originally imposed without deduction of time allowed for good conduct. The question thus presented turns upon the proper construction of USCA title 18, § 719 (Act of June 25, 1910, c. 387, § 6, 36 Stat. 820) in conjunction with section 723c (Act of May 13, 1930, c. 255, § 3, 46 Stat. 272).

Section 719 provides that "if said order of parole shall be revoked and the parole so terminated, the said prisoner shall serve the remainder of the sentence originally imposed; and the time the prisoner was out on parole shall not be taken into account to diminish the time for which he was sentenced." Section 723c relating to the same subject matter provides that "the unexpired term of imprisonment of any such prisoner shall begin to run from the date he is returned to the institution, and the time the prisoner was on parole shall not diminish the time he was originally sentenced to serve."

The prisoner Rowe was convicted in the Southern District of New York for fraudulent use of the mails and sentenced to three years penitentiary imprisonment to date from June 27, 1932. He was confined in the United States Penitentiaries first at Atlanta, Georgia, then at Lewisburg, Pennsylvania, until he was released on parole on October 19, 1933, having then completed a service of 480 days. On April 27, 1934, he was returned to Lewisburg as a parole violator and subsequently transferred to the Reformatory Camp at Petersburg, Virginia. Under date of June 8, 1934, the United States Parole Board issued its certificate of revocation of his parole, and the Superintendent of the Reformatory Camp has exhibited as authority for the prisoner's continued detention properly authenticated copies of the original commitment and the certificate of revocation of parole. It is agreed that the prisoner has yet to serve a substantial portion of his original term of imprisonment, if he is not entitled to deduction therefrom for allowance of time for good conduct, which in the present case would be at the rate of seven days in each month of the three year sentence.

On behalf of the prisoner it is argued that section 719 in providing that "the said prisoner shall serve the remainder of the sentence originally imposed; and the time the prisoner was out on parole shall not be taken into account to diminish the time for which he was sentenced" should be construed in subordination to section 710 which provides for the good time allowance of prisoners while in penal institutions; that the two sections are not inconsistent, and are in pari materia; and that therefore "the remainder of the sentence originally imposed" means the term of the sentence less the allowance for good conduct while imprisoned, unaffected by conduct while on parole; and it is said that the wording of section 723c as above quoted fortifies this contention. The contrary was, however, expressly decided by the Circuit Court of Appeals for the Ninth Circuit in Halligan v. Marcil, 208 F. 403, before the enactment of section 723c in 1930; and by the Circuit Court of Appeals for the Fifth Circuit in Aderhold v. Perry, 59 F.(2d) 379, 380; Morgan v. Aderhold, 73 F.(2d) 171; Platek v. Aderhold, 73 F. (2d) 173; Harrell v. Aderhold, 73 F.(2d) 189, 190 (all decided after the enactment of section 723c). See also Ex parte Marcil (D. C.) 207 F. 809; Ebeling v. Biddle (C. C. A.) 291 F. 567; United States ex rel. Anderson v. Anderson (D. C.) 8 F. Supp. 812, affirmed on appeal by the Circuit Court of Appeals for the Eighth Circuit, March 11, 1935. 76 F.(2d) 375.

We are in accord with the reasoning and conclusions in these cases. It must be borne in mind that the legal philosophy underlying the parole law is not a release of the prisoner from all disciplinary restraint but is rather merely "an extension of the prison walls"; and the prisoner while on parole remains "in the legal custody and under the control of" the Parole Board. 18 USCA § 716; Anderson v. Corall, 263 U. S. 193, 196, 44 S. Ct. 43, 68 L. Ed. 247; Morgan v. Aderhold (C. C. A.) 73 F.(2d) 171, 172; Stockton v. Massey, 34 F.(2d) 96 (C. C. A. 4). And the so-called good time allowance is to be received only by one "whose record of conduct shows that he has faithfully observed all the rules and has not been subjected to punishment." Section 710. It seems to have been the uniform administration of the law to treat the prisoner's record during the entire term of imprisonment as an entity to determine whether the deduction from the original sentence for good conduct is allowable and thus, as was said in Aderhold v. Perry, supra, "the credit is not a vested right, but only contingent until a time arrives such that its allowance will end imprisonment." It is entirely consistent with this view of the nature of parole to treat the conduct of the paroled prisoner, during the period that he is released on parole, as a part of his record of conduct during the whole of the term for which he was sentenced. And thus a violation of the conditions of his parole, entailing re-imprisonment, fairly constitutes a bar to his allowance of time for good conduct which he has not earned.

Another contention here made on behalf of the prisoner is that the Parole Board did not accord him a proper hearing before revocation of his parole. USCA title 18, § 719, provides "At the next meeting of the board of parole held at such prison after the issuing of a warrant for the retaking of any paroled prisoner, said board of parole shall be notified thereof, and if said prisoner shall have been returned to said prison, he shall be given an opportunity to appear before said board of parole, and the said board may then or at any time in...