Voorhees v. Cox

• Decision Date: 18 February 1944
• Docket Number: No. 12809.,12809.
• Citation: 140 F.2d 132
• Parties: VOORHEES v. COX.
• Court: U.S. Court of Appeals — Eighth Circuit

140 F.2d 132 (1944)

VOORHEES v. COX.

No. 12809.

Circuit Court of Appeals, Eighth Circuit.

January 31, 1944.

Rehearing Denied February 18, 1944.

John W. Oliver, of Kansas City, Mo., for appellant.

Otto Schmid, Asst. U. S. Atty., of Kansas City, Mo. (Maurice M. Milligan, U. S. Atty., of Kansas City, Mo., on the brief), for appellee.

Before STONE, THOMAS, and VAN VALKENBURGH, Circuit Judges.

VAN VALKENBURGH, Circuit Judge.

This is an appeal from an order and judgment of the District Court for the Western District of Missouri discharging a writ of habeas corpus theretofore issued in behalf of the above-named appellant. The facts are presented by an agreed statement, which has been certified to this court as the record on appeal, pursuant to Rule 76 of the Federal Rules of Civil Procedure, 28 U.S.C.A. following section 723c.

The facts agreed, and as found by the trial court, material to the disposition of this appeal, are the following:

March 21, 1935, appellant was sentenced, on plea of guilty to violation of the postal laws, 18 U.S.C.A. § 317, to five years imprisonment in the United States Penitentiary at Leavenworth, Kansas. Pursuant to Act of June 21, 1902, 18 U.S.C.A. § 710, he had earned 480 days of good conduct time, and was released from prison November 26, 1938. By Act of June 29, 1932, a prisoner thus released with credit for good conduct, "shall upon release be treated as if released on parole and shall be subject to all provisions of law relating to the parole of United States prisoners until the expiration of the maximum term or terms specified in his sentence." 18 U.S.C.A. § 716b. Appellant was therefore to have been considered as on conditional release, and subject to the parole laws from November 26, 1938 to what would be the expiration of his maximum term by its provisions, to wit March 21, 1940.

September 11, 1939, appellant was sentenced in the District Court of the United States for the Eastern District of Illinois, on plea of guilty, to five years imprisonment in the United States Penitentiary at Leavenworth, Kansas, again for violation of the postal laws, 18 U.S.C.A. § 317. On this second sentence appellant earned his deduction for good time, and was thus, under that sentence, entitled to be released from prison on May 19, 1943. September 30, 1939, the Chairman of the United States Board of Parole issued a warrant for retaking appellant on his first sentence, reciting his conditional release November 26, 1938, and reliable information that appellant had violated the conditions of that release, and was therefore deemed to be a fugitive from justice. The warrant commanded the retaking of appellant whenever found and him returned to the institution thereinafter designated. The writ, on its face, was issued September 3, 1939, but the serving officer did not receive it until May 28, 1941, and actually served it May 19, 1943, after the conclusion of the service of the second sentence.

A hearing on the revocation of the warrant was held July 30, 1943 by an examiner designated by the Board of Parole, and the Board formally issued its order revoking the parole August 5, 1943. Appellant was transferred from Leavenworth to the Medical Center for Federal Prisoners at Springfield, Missouri, May 24, 1941.

The points relied upon by appellant in this appeal are thus stated:

"1. The trial court erred in refusing to grant the prayer of the petition for writ of habeas corpus for the reason that:

"(a) The petitioner had served in full the maximum term of the five year sentence imposed upon him by Judge Davis of the District Court of the United States for the Eastern District of Missouri.

"(b) The effort of the United States Board of Parole (thus far successful) to make the petitioner re-serve that portion of his first sentence which petitioner earned as a good conduct deduction, is unauthorized by any law of the United States and is in violation of the Fifth Amendment of the Constitution of the United States.

"(c) Your petitioner was, under the admittedly applicable parole law, in the custody of the warden of the Federal Penitentiary under both the first and second sentences throughout the terms of each sentence. The second sentence did not provide that it should run consecutively with the first sentence. Under those factual circumstances, the two sentences ran concurrently as a matter of law, and the time served on the second sentence was also time served on the first sentence.

"(d) The United States Board of Parole admittedly possessed power to revoke the conditional release of the first sentence, but that power was present only if said Board acted before the expiration of the maximum term of that sentence. In the case at bar it admittedly failed to act within that time. After the expiration of the maximum term of the first sentence the Board of Parole was without power, authority or jurisdiction to act.

"2. The trial court erred in its conclusion of law that the two sentences did not run concurrently because it overlooked the fact and the law that the petitioner was in the custody of the warden of the Federal Penitentiary throughout the terms of both sentences.

"3. The petitioner was not given a hearing pursuant to the law as it existed at the time the warrant was issued, which required that the full Board hold said hearing and not an examiner appointed by it. The attempt to hold a hearing before an examiner pursuant to a subsequently enacted law is in violation of the Ex Post Facto Clause of the Constitution of the United States. (Article 1, Section 9, thereof)."

The Sections of Statute, and the parts thereof applicable to the situation here presented, compiled and collated in 18 U.S.C.A. are the following:

Section 710 provides computation for deductions from sentences for good conduct, under which appellant was conditionally released with credit for time thus earned.

Section 716b. "Prisoners released with credit for good conduct treated as on parole until expiration of maximum term. Any prisoner who shall have served the term or terms for which he shall after June 29, 1932 be sentenced, less deductions allowed therefrom for good conduct, shall upon release be treated as if released on parole and shall be subject to all provisions of law relating to the parole of United States prisoners until the expiration of the maximum term or terms specified in his sentence: Provided, That this section shall not operate to prevent delivery of a prisoner to the authorities of any State otherwise...