Woods v. Steiner, Civ. No. 13851.

CourtUnited States District Courts. 4th Circuit. United States District Court (Maryland)
Citation207 F. Supp. 945
Docket NumberCiv. No. 13851.
PartiesGene John WOODS v. William STEINER, Warden, Maryland House of Correction, Department of Parole and Probation, Paul C. Wolman, as Chairman and Director of Department of Parole and Probation, Joseph A. Mattingly, as Associate, and Theodore J. Hahn, as Associate.
Decision Date03 August 1962

207 F. Supp. 945

Gene John WOODS
William STEINER, Warden, Maryland House of Correction, Department of Parole and Probation, Paul C. Wolman, as Chairman and Director of Department of Parole and Probation, Joseph A. Mattingly, as Associate, and Theodore J. Hahn, as Associate.

Civ. No. 13851.

United States District Court D. Maryland.

August 3, 1962.

207 F. Supp. 946

David F. Albright, Baltimore, Md., court-appointed, for petitioner.

Thomas B. Finan, Atty. Gen., of Md., and Thomas W. Jamison, III, Asst. Atty. Gen., of Md., for respondents.

NORTHROP, District Judge.

The petitioner, Gene John Woods, is a state prisoner seeking the issuance of a writ of habeas corpus. Upon receiving the petition, the court passed an order directing the respondents to show cause why the relief prayed should not be granted. Upon the filing of an answer and amended answer thereto, the court appointed counsel to represent the petitioner at a hearing on the questions raised. This hearing was held on July 20, 1962, at which time the petitioner and respondents stipulated and agreed that the controlling facts of the case are as follows.

On December 15, 1956, Woods was arrested and incarcerated in Montgomery County, Maryland, on charges of housebreaking, larceny, and receiving stolen goods. Five days later, he was tried by a jury and found guilty. Upon this verdict Judge Kathryn Lawlor Shook sentenced the petitioner to five years' imprisonment in the Maryland House of Correction, commencing on December 15, the date of his incarceration pending trial. In these proceedings the petitioner had the assistance of counsel, and no direct appeal was taken.

On September 15, 1958, the petitioner escaped from prison. He was retaken and returned to the Maryland House of Correction on January 2, 1959, having been at large for a period of 109 days. Then, after a series of postponements, on December 1, 1959, Woods was tried for this escape in the Criminal Court of Baltimore City before Judge Joseph Allen. Upon entering a plea of "guilty" the petitioner was sentenced to one year's imprisonment, to be served concurrently with the sentence previously imposed in Montgomery County.

Thereafter, on March 21, 1960, Woods was placed on parole. Free to move about in the community, the petitioner complied with the terms and conditions of his parole for a period of 224 days, until, on October 31, 1960, he was arrested for the commission of a crime in the State of Virginia. After being found "guilty" of this offense, Woods was held in the custody of the Virginia authorities until February 28, 1962. On the latter date, 709 days after his original release on parole, he was returned to the Maryland House of Correction. In this transfer, Woods waived his right to contest the extradition.1

207 F. Supp. 947

Following a hearing, the procedural regularity of which is not contested,2 on April 10, 1962, the state's Board of Parole and Probation revoked its previous parole order, thereby requiring the petitioner to serve the balance of the sentence under which he was imprisoned at the time of his conditional release.

Thus, Woods has been advised that his maximum sentence now will expire on March 12, 1964. Presumably, this date was ascertained by: (1) adding to the original expiration date (December 15, 1961, five years from December 15, 1956) the number of days (109) the petitioner was at large after his escape, to arrive at a new expiration date of April 3, 1962; and (2) adding to this date the number of days (709) the petitioner was out of the Maryland House of Correction on parole.

The primary ground upon which the issuance of the writ is sought is that the computations explained above constitute a deprivation of the petitioner's constitutional rights. It is explicitly urged that this manner of computation is a denial of due process and equal protection that amounts to double jeopardy or cruel and unusual punishment (by extending or increasing the sentence). It is the petitioner's contention that, once the term of sentence was set by Judge Shook, she a fortiori also set the expiration date thereof and nothing could be done to alter same. In other words, the petitioner urges that neither his period of escape nor his period of parole justifies extending the term of his imprisonment beyond December 15, 1961.

In oral argument, counsel for the petitioner formulated a somewhat narrower attack on the constitutionality of Woods' incarceration. He suggested that, even if it were proper to add escape and parole time to the prisoner's sentence, the Board of Parole and Probation exceeded its authority in denying him credit for that period of his parole, from March 21 to October 31, 1960, during which he complied with the conditions of his release. Were this the sole ground alleged, the petition would be dismissed by the court because prematurely brought.3 However, as it is probably the strongest argument that can be made in the petitioner's favor, it will be considered in the discussion to follow.

These various contentions are but the particularized substance of a general claim that, as applied, the Maryland statute under which Woods' parole was revoked is unconstitutional. The statute provides as follows:

"Whenever a prisoner released on parole is retaken, he shall, at the next meeting of the Board of Parole and Probation at the institution designated for the return of the parolee, be given an opportunity to appear before the Board or a member thereof. The Board may then or within a reasonable time thereafter revoke the order of parole and terminate the conditions thereof. If the order of parole is revoked, the prisoner shall serve the remainder of the sentence originally imposed without credit for the time spent in the community under parole supervision except that said Board may, in its discretion,
207 F. Supp. 948
grant credit for time spent in the community under parole supervision or for such part thereof as to the Board may seem just and fair under the circumstances. The Board may again parole the returned parolee if, in the opinion of the Board, he merits such consideration." emphasis supplied Annotated Code of Maryland, Art. 41, § 115 (1957 Ed.)

The constitutionality of this statute and the particular language important here has been upheld by the Court of Appeals of Maryland upon no fewer than eight occasions. Carolina v. Director, 217 Md. 379, 142 A.2d 602 (1958); Chase v. Warden, 216 Md. 627, 139 A.2d 508 (1958); Woolford v. Warden, 215 Md. 640, 137 A.2d 646 (1958); Phillips v. Warden, 215 Md. 632, 137 A.2d 713 (1958); Clark v. Warden, 213 Md. 641, 131 A.2d 396 (1957); Hall v. Warden, 211 Md. 661, 128 A.2d 280 (1957); Creager v. Warden, 211 Md. 649, 127 A.2d 135 (1956); Williams v. Warden, 209 Md. 627, 120 A.2d 184 (1956). In each of the cases just cited, a parole violator was challenging the discretionary refusal of the Board of Parole and Probation to credit his sentence with time served in the community under parole supervision. In each case, this discretionary action by the Board and the constitutionality of the statute were upheld.

The United States Code Annotated, Title 18, § 4205, provides as follows:

"A warrant for the retaking of any United States prisoner who has violated his parole, may be issued only by the Board of Parole or a member thereof and within the maximum term or terms for which he was sentenced. The unexpired term of imprisonment of any such prisoner shall begin to run from the date he is returned to the custody of the Attorney General under said warrant, and the time the prisoner was on parole shall not diminish the time he was sentenced to serve." emphasis supplied

Comparing the state and federal statutes, it is quickly apparent that the latter is the more stringent of the two. The Maryland statute, although it establishes what might be called a presumption that the parolee shall not receive prison credit for time spent in the community under the Board's supervision, confers upon the Board discretionary authority to grant such credit, in whole or in part. On the other hand, the federal statute is conclusive on the point and withholds such power from the federal Board of Parole; in every instance a federal parole violator may not receive credit on his sentence for "street time." Thus, the federal statute and the cases decided thereunder provide a convenient analogy for the determination of the questions presented by the instant petition.

While federal courts have been called upon to construe Section 4205 quite frequently, only upon rare occasions have they been obliged to determine its constitutionality. Upon each such latter occasion, the statute has been found to be valid. Van Buskirk v. Wilkinson, 216 F.2d 735 (9th Cir. 1954); Hedrick v. Steele, 187 F.2d 261 (8th Cir. 1951); Dolan v. Swope, 138 F.2d 301 (7th Cir. 1943). See also Howard v. United States, 274 F.2d 100 (8th Cir. 1960), certiorari denied 363 U.S. 832, 80 S.Ct. 1604, 4 L.Ed.2d 1525; O'Neal v. Fleming, 201 F.2d 665 (4th Cir. 1953); Hall v. Welch, 185 F.2d 525 (4th Cir. 1950); Evans v. Hunter, 162 F.2d 800 (10th Cir. 1947), certiorari denied 332 U.S. 818, 68 S.Ct. 144, 92 L.Ed. 395; Chandler v. Johnston, 133 F.2d 139 (9th Cir. 1943); Story v. Rives, 68 App.D.C. 325, 97 F.2d 182 (1938), certiorari denied 305 U.S. 595, 59 S.Ct. 71, 83 L.Ed. 377. In Dolan v. Swope, supra, the court said (at pp. 303-304):

"In other words, the allowance of the credit for time spent by him outside prison walls in service of his sentence, was conditioned upon continuance of good behavior, and if before expiration of his original sentence
207 F. Supp. 949
he by his own misconduct subjected himself to rearrest, he not only forfeited his good conduct credit for the balance of his sentence (which counsel freely concedes) but he also forfeited his credit for the time already spent on parole. As in the probation cases, such increase of sentence was potentially a part of the original

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