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United States v. Burke.

decided: December 16, 1952.

UNITED STATES EX REL. MACBLAIN
v.
BURKE.



Author: Staley

Before McLAUGHLIN, KALODNER and STALEY, Circuit Judges.

STALEY, Circuit Judge.

Acting as his own lawyer, petitioner appeals from a denial of his petition for a writ of habeas corpus, seeking release from Pennsylvania confinement.

Petitioner was sentenced in 1926 by the Court of Oyer and Terminer of Montgomery County, Pennsylvania, to two consecutive terms of imprisonment, one for seven and one-half to fifteen years and the other for five to ten years.In 1936, the minimum portion of his first sentence was commuted to one day,*fn1 and he was released on parole about one month later. In 1937, he was returned as a technical parole violator and was held until 1938, when he was again paroled. In 1940, he was convicted of a crime in New Jersey and was confined there until paroled in 1946. Immediately upon his New Jersey parole, he was taken into custody by Pennsylvania authorities to serve the unexpired part of his sentences, his New Jersey conviction being a violation of the Pennsylvania parole.*fn2

Petitioner contends that he has been denied due process because in 1933, at the expiration of the minimum term of his first sentence, he was denied an opportunity to apply for parole, as required by Pennsylvania law.*fn3 This came about, he claims, because of his ignorance of his parole rights and because the prison authorities illegally added his two sentences together and entered them as one sentence of twelve and one-half to twenty-five years. Since he was given no opportunity to apply for parole, he argues that he should be considered as having been granted an automatic parole, in 1933, of the maximum part of his first sentence. This, the argument runs, would give him a dual status: on constructive parole on the maximum part of his first sentence and serving the minimum part of his second.Thus, his total maximum would be seventeen and one-half years rather than twenty-five years. Hence, he has fully served his total maximum and is entitled to release.

The difficulty is that he was not paroled in 1933; he was merely eligible to be considered for parole. Therefore, we cannot be guided by whatever consequences might have ensued had he been paroled. Not having been paroled, he could not begin serving the minimum part of his second sentence until he had served the maximum of his first sentence. Commonwealth ex rel. Lewis v. Ashe, 335 Pa. 575, 7 A.2d 296, certiorari denied, 1939, 308 U.S. 596, 60 S. Ct. 132, 84 L. Ed. 499; Commonwealth ex rel. Lynch v. Ashe, 1936, 320 Pa. 341, 182 A. 229.

In substance, petitioner claims that in 1933 he lost the right to apply for parole of the maximum part of his first sentence. But he had the right to make such application every month following that time,*fn4 and if the prison authorities denied him the right to apply for parole in 1933 or at any time thereafter, he had a complete procedural remedy to enforce that right. Mandamus was available to petitioner to compel compliance with the statute granting the right to appear and apply for parole. Kinsella v. Board of Trustees, 1941, 340 Pa. 497, 17 A.2d 882. The state having made available procedure specifically designed to protect that right, whatever error there may have been is not now open to attack in habeas corpus proceedings in federal court. Dunn v. Lyons, 5 Cir., 1928, 23 F.2d 14. See United States ex rel. Smith v. Baldi, 3 Cir., 1951, 192 F.2d 540.

Furthermore, petitioner has not been hurt by his treatment in 1933. He was in fact paroled in 1936, and he violated parole by his New Jersey conviction in 1940. Because of that violation, he is now serving the unexpired maximum of his sentences, without credit for time on parole.*fn5 Even had he been paroled in 1933, the parole violation in 1940 would require that he be recommitted to serve the same sentence which he is now serving.

Petitioner contends also that his extradition from New Jersey was unconstitutional in that the Interstate Compact Act,*fn6 under which he was retaken, does not allow review by the New Jersey courts of the decision by the demanding state to retake the parole violator. The contention is meritless in view of Frisbie v. Collins, 1952, 342 U.S. 519, 72 S. Ct. 509. See also Pierce v. Smith, 9 Cir., 175 F.2d 193, certioraridenied, 1949, 338 U.S. 838, 70 S. Ct. 49, 94 L. Ed. 512, where the very point raised here was decided Adversely to petitioner.*fn7

The judgment of the district court will ...


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