Vitale v. Hunter, 4647.
| Decision Date | 03 September 1953 |
| Docket Number | No. 4647.,4647. |
| Citation | 206 F.2d 826 |
| Parties | VITALE v. HUNTER, Warden. |
| Court | U.S. Court of Appeals — Tenth Circuit |
Joseph M. Bonuso, Washington, D. C. (James H. Hope, Topeka, Kan., on the brief), for appellant.
Robert H. Bingham, Topeka, Kan. (Eugene W. Davis, Topeka, Kan., on the brief), for appellee.
Before PHILLIPS, Chief Judge, and MURRAH and PICKETT, Circuit Judges.
Complaining of the restraint of his liberty by the respondent Warden, upon an alleged violation of the terms of a commuted sentence, the petitioner brought this action for a writ of habeas corpus to effect his release from Leavenworth Penitentiary. And, this appeal is from an order of the District Court of Kansas discharging the writ.
The petition for the writ alleged in substance that he was arrested and detained by the agents of the Immigration and Naturalization Service on January 31, 1952, at the International Airport, Los Angeles, California, while enroute from Tia Juana, Mexico, to Rome, Italy, via Los Angeles and New York, and while being transferred to a connecting and waiting airline for direct transit across the United States. He alleged that when he booked passage into and across the United States, he had in his possession a roundtrip ticket from Rome, Italy, to Tia Juana via Venezuela, but upon being informed of an agreement between the United States and the airline, under which aliens without a visa were permitted to travel through the United States under the supervision of the airline, and that such route was quicker and shorter, he purchased the ticket on which he was traveling at the time of his arrest; that except for his unlawful arrest and detention, he would have continued upon his journey through and across the United States to his home in Italy.
In a supporting memorandum, the petitioner stated that while serving sentences totaling fifteen years in the Federal Penitentiary, the President of the United States commuted the sentences on May 26, 1935, to expire immediately upon his delivery to the Immigration and Naturalization Service for deportation, provided that if he should thereafter "be found within the United States * * * otherwise than in the lawful custody of a federal officer, the commutation shall thereupon become null and void and of no effect, and he shall be returned to the penitentiary to complete the service of his sentences. * * *" The agreement between the United States and the airline, referred to in the petition and attached to the memorandum, provided in substance that alien passengers without visas were permitted to travel through the United States in Direct transit, with necessary servicing and connecting stops, to destinations outside the United States, provided that such passengers would be under the strict supervision of the airline, with binding obligation to vouchsafe their orderly passage in accordance with the agreement. The contention is that apprehension while in direct transit across the United States to a destination outside thereof under the strict supervision of the airline, is not being "found within the United States" as that term is used in the Presidential commutation of the sentences; that not having been found in the United States, his detention is unlawful and the writ should therefore issue.
In his response to the petition, the Warden admitted custody but denied its illegality. He alleged the attached judgments, commitments and the Presidential commutation. He attached and made specific reference to an indictment returned in the United States District Court for the Southern District of Florida in 1945, charging this petitioner with "unlawfully, willfully, knowingly and feloniously entering the United States of America from a foreign country" by means of a vessel which arrived at Miami, Dade County, Florida, on October 2, 1944; and further charging that at the time of such entry into the United States, the petitioner was an...
To continue reading
Request your trial
-
United States v. Surratt
...to a pardon or commutation, the pardon or commutation becomes void if the condition is breached. See, e.g. , Vitale v. Hunter , 206 F.2d 826, 829 (10th Cir. 1953) ; Pippin v. Johnson , 192 Ga. 450, 15 S.E.2d 712, 713 (1941) ; People ex rel. Madigan v. Snyder , 208 Ill.2d 457, 281 Ill.Dec. 5......
-
Dennis v. Terris
...the commutation, and absent more executive grace be subject once again to life imprisonment under the sentence. See Vitale v. Hunter , 206 F.2d 826, 829 (10th Cir. 1953). The judgment remains in place, ready to kick into full effect if the recipient violates the conditional cap.The possibil......
-
Hagelberger v. United States, 71-1385 Summary Calendar.
...act any lawful and reasonable conditions. Bishop v. United States, 96 U. S.App.D.C. 117, 223 F.2d 582, 587-588 (1955); Vitale v. Hunter, 206 F.2d 826 (10th Cir. 1953); Stroud v. Johnson, 139 F.2d 171, 172 (9th Cir. 1943), cert. den. 321 U.S. 796, 64 S.Ct. 846, 88 L.Ed. 1085 (1944); Lupo v. ......
-
United States v. Tennille
...that was reduced by a commutation reverting to the higher amount of the earlier judicial sentence. Id. (citing Vitale v. Hunter, 206 F.2d 826, 829 (10th Cir. 1953)). In accordance with the Sixth Circuit's Order [DE 422, at 2], the Court finds Tennille's past commutation does not in itself m......