Opinion
No. 82.
August 30, 1939.
Glen E. Gray, in pro. per.
J. Charles Dennis, U.S. Atty. for the Western Dist. of Washington and Oliver Malm, Dep. U.S. Atty., both of Tacoma, Wash., for the Respondent.
Habeas corpus proceeding by Glen F. Gray, petitioner, against E.B. Swope, Warden, United States Penitentiary, McNeil Island, Wash.
Petition denied.
Petition for writ of habeas corpus, in forma pauperis, presented ex parte by the petitioner, appearing for himself.
Petitioner is imprisoned in the Federal Penitentiary, at McNeil Island, Washington, under two consecutive sentences, one for five years, and another for eighteen months.
While serving the first sentence, he escaped. Upon his recapture, and imposition of the second sentence for escape, all his credits for good behavior during the first five year term were revoked, as part of punishment for escape. His petition challenges the forfeiture. He asserts that by his escape he forfeited only the allowance for good behavior to which he was entitled when he escaped, and not what he might have earned by subsequent good behavior, after he was captured and returned.
Asserting that, under such computation, his sentence expired on August 28, 1939, he claims unlawful detention by the Warden of the Penitentiary, subsequent to that date, and seeks a writ of habeas corpus.
The petition is clearly without merit.
Its chief ground is that the petitioner's escape from the Federal Penitentiary on October 10, 1931, while warranting the forfeiture of "good conduct" deduction earned prior thereto, did not justify deprivation of such deduction for the entire first five year term which he began to serve on February 6, 1931.
Ever since the enactment of Section 710, Title 18, U.S.C.A., it has been held that the record of good conduct which entitles the prisoner to credits is his record "for the entire term".
Absence of good behavior and subjection to punishment forfeits credits for the entire term. See Op. Atty. Gen., 1909, vol. 28, p. 110; Ebeling v. Biddle, 8 Cir., 1923, 291 F. 567; Aderhold v. Perry, 5 Cir., 1932, 59 F.2d 379. See especially Carroll v. Zerbst, 10 Cir., 1935, 76 F.2d 961, where the identical question was decided very recently contrary to the contention here made.
Leave to file the petition in forma pauperis is denied.
The clerk is directed to notify the United States attorney and petitioner of the foregoing ruling.