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Jenkins v. Madigan.

April 15, 1954

JENKINS
v.
MADIGAN.



Author: Schnackenberg

Before MAJOR, Chief Judge, and SWAIM and SCHNACKENBERG, Circuit Judges.

SCHNACKENBERG, Circuit Judge.

In this appeal we review the judgment of the District Court denying a petition for writ of habeas corpus filed by petitioner, naming the acting warden of the United States penitentiary at Terre Haute, Indiana, as respondent.

Upon the filing of the petition, the respondent was ordered to show cause why a writ of habeas corpus should not issue. He thereupon filed an answer, to which petitioner filed a traverse.

A written stipulation of facts was signed and filed.

Thereafter, by leave of court, respondent filed an addendum to his answer to which to traverse was filed by petitioner.

The controlling facts, as set forth in the stipulation and the addendum, are as follows:

On February 2, 1949, petitioner was sentenced in the United States District Court for the Northern District of Indiana, Fort Wayne Division, to a term of four years' imprisonment for violation of the National Motor Vehicle Theft Act, 18 U.S.C.A. ยง 2311 et seq. On July 10, 1950, petitioner was released on parole from said sentence and imprisonment which he was serving in the United States reformatory at Chillicothe, Ohio. Petitioner remained on parole until December 9, 1950, at which time he was arrested as a federal parole violator by virtue of a federal parole violator warrant for the arrest of petitioner issued on November 20, 1950, by the United States Board of Parole. The arrest of petitioner on December 9, 1950, was made by agents of the Federal Bureau of Investigation and was made with the knowledge that the said parole violator warrant for the arrest of petitioner had been issued.

On December 9, 1950, petitioner was taken by said federal agents to the Allen county jail located at Fort Wayne, Indiana, as such parole violator, where the petitioner was then held. The Allen county jail card pertaining to petitioner, among other things, showed "Escaped on 12-4-50" and "Returned by Federal Authorities 12-10-50".

The petitioner had, previous to his arrest by federal agents as a parole violator, entered a plea of guilty to second degree burglary charges in the Allen county court and was sentenced in the said court on November 20, 1950, to an indeterminate term of two to five years, to be served at the state reformatory at Pendleton, Indiana. On December 4, 1950, the petitioner, while awaiting transfer to the state reformatory at Pendleton, walked out of the Allen county jail.

Several days after December 9, 1950, petitioner was released to the Allen county authorities and was transported to the state reformatory at Pendleton, Indiana, where he remained for a period of two years. Neither the United States marshal or any other federal agent made any entries on the parole violator warrant reflecting any of the foregoing activities.

On December 28, 1950, the United States marshal for the Northern District of Indiana sent a letter to the superintendent of the Indiana reformatory at Pendleton, notifying him of the warrant issued for violation of parole and asking that petitioner be detained and the marshal be given advance notice of the petitioner's release in order that "we may assume custody".

Upon the petitioner's release from the state reformatory at Pendleton, Indiana, on November 20, 1952, he was immediately taken into custody by the United States marshal under color of the parole violator warrant and was transported to the United States penitentiary at Terre Haute, Indiana, to serve the remainder of the four-year term imposed on petitioner on February 2, 1949.

Entries were made by the United States marshal on the parole violator warrant reflecting the latter action. The petitioner is now confined in the United States penitentiary in Terre Haute, ...


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