United States v. Tees

• Decision Date: 09 March 1954
• Docket Number: No. 11209.,11209.
• Citation: 211 F.2d 69
• Parties: UNITED STATES ex rel. BOGISH v. TEES.
• Court: U.S. Court of Appeals — Third Circuit

211 F.2d 69 (1954)

UNITED STATES ex rel. BOGISH v. TEES.

No. 11209.

United States Court of Appeals, Third Circuit.

Submitted February 18, 1954.

Decided March 9, 1954.

Alex Bogish, pro se.

W. Wilson White, U. S. Atty., D. Donald Jamieson, Asst. U. S. Atty., Philadelphia, Pa., for appellee.

Before MARIS, KALODNER and STALEY, Circuit Judges.

MARIS, Circuit Judge.

This is an appeal by the relator from the denial by the United States District Court for the Eastern District of Pennsylvania of his petition for a writ of habeas corpus. The relator had been convicted in the same district court on an indictment charging him with violating the federal narcotic laws and had been sentenced to 60 days imprisonment on each of the three counts of the indictment, to be served concurrently. On appeal his conviction was affirmed by this court. United States v. Bogish, 3 Cir., 1953, 204 F.2d 507.

It appears that the relator had previously been convicted of a crime in a Pennsylvania state court. At the time of his conviction in the United States District Court he was on parole from the state penitentiary. Following his discharge from his federal imprisonment he was recommitted to the state penitentiary as a parole violator by the Pennsylvania Board of Parole and he is now serving the remainder of his original state sentence. The relator now seeks release from the state penitentiary by habeas corpus on the ground that his conviction in the United States District Court was in violation of his constitutional rights and that accordingly the revocation of his parole by the Pennsylvania Board of Parole because of that conviction was invalid. He does not attack the validity of his state conviction or sentence.

It is clear that the relator's petition for the issuance of a writ of habeas corpus was properly denied. The relator seeks to be released from state custody but has failed to show that he has exhausted his state remedies or that such remedies are unavailable or ineffective, which under section 2254 of Title 28, United States Code, is a condition precedent to the issuance of the writ by a federal court in such a situation. For while it has been held that habeas corpus is not available in Pennsylvania to review the actions of the Board of Parole,¹ it does appear that arbitrary or unlawful action on the part of the Board is reviewable by the Pennsylvania courts in a mandamus proceeding.² Moreover the Pennsylvania parole law³ confers upon the Board a wide discretion as to the recommittal or continuance on parole of a parolee regardless of whether he has been convicted during his parole of another crime or has been guilty of a "technical" parole violation only. It is, therefore, not inconceivable that the Board might reparole the relator or revoke his recommittal if he made a convincing showing that his federal conviction was invalid by reason of a constitutional infirmity and that the interests of society would best be served by his restoration to parole. This may be possible even though the Board could not be compelled to make a declaratory ruling that the conviction was invalid.⁴ On the other hand it may be that the action of the Board in recommitting the relator was not based solely on his federal conviction. It might have been based also on conduct on his part which would have made his recommittal appropriate regardless of his federal conviction. This we cannot know since the relator has made no application for relief either to the Pennsylvania Board of Parole or to the courts of that state. His application to the district court for habeas corpus is, therefore, barred by section 2254.

Furthermore we see no basis for supposing that in any event the relator could secure the relief he desires through a writ of habeas corpus directed to his state custodian. For in such a habeas corpus proceeding he would have to establish that his detention under his state sentence is unlawful since it is under that sentence that he is held in custody having been recommitted to serve it out by the Board of Parole. But the state sentence is not challenged and the action of the Board in recommitting the relator on the basis of his federal conviction, assuming that was the sole basis for its action, could hardly be stamped as invalid unless it could be said that the Board was wrong in giving such faith and credit to the final and unimpeached judgment of the federal district court in the relator's case. It would be extravagant to think that any court would so hold.

Parole in Pennsylvania has been held to be purely a matter of grace and not of right. "It does not obliterate the crime or forgive the offender. It is not an act of clemency, but a penological measure for the disciplinary treatment of prisoners who seem capable of rehabilitation outside of prison walls. It does not set aside or affect the sentence; the convict remains in the legal custody of the state and under the control of its agents, subject at any time, for breach of condition, to be returned to the penal institution." Commonwealth ex rel. Banks v. Cain, 1942, 345 Pa. 581, 585, 28 A.2d 897, 899, 143 A.L.R. 1473. In view of the nature of parole and the broad discretion which, as we have seen, is vested in the Pennsylvania Board of Parole in its administration we think it probable that the most to which the relator would be entitled would be reconsideration by the Board of his recommittal as a parole violator if and when he is able to establish that his federal narcotic law conviction is void.

The dilemma with which the relator is faced is thus apparent. He must establish the invalidity of his federal conviction before he can ask the Pennsylvania Board of Parole to revoke its action in recommitting him because of that conviction. And he cannot establish the invalidity of that conviction in a habeas corpus suit directed against his state custodian. Nor can he do so in a statutory proceeding under section 2255 of title 28, United States Code. For the remedy given by that section is available only to a prisoner who is actually in custody under the sentence which he seeks to set aside.⁵ Here the relator has served in full the sentence imposed by the district court and is now, as we have seen, a prisoner in the custody of a state penitentiary warden under the sentence of a state court.

There is, however, a procedure by which one in the position of the relator...