United States District Court, Northern District of Illinois, E.D
October 17, 1972
UNITED STATES OF AMERICA EX REL. RICHARD OLIVER CAIN, PETITIONER,
UNITED STATES BOARD OF PAROLE ET AL., RESPONDENTS.
The opinion of the court was delivered by: Bauer, District Judge.
MEMORANDUM OPINION AND ORDER
This cause comes before the Court on a petition for a writ of
habeas corpus pursuant to 28 U.S.C. § 2255. The petitioner,
Richard Oliver Cain, was sentenced to a term of ten years for
violation of 26 U.S.C. § 4705(a), a consecutive term of five
years for violation of 21 U.S.C. § 174, and a further consecutive
five-year term for violation of 21 U.S.C. § 174. Sentencing for
the above three terms took place on or about April 12, 1957.
These violations are in the nature of "hard counts" in that they
are offenses for which Cain was not eligible for parole pursuant
to 26 U.S.C. § 7237(d).
Subsequently, Cain was sentenced to a three-year term,
consecutive to the above terms, for a violation of 18 U.S.C. § 113(c).
At this sentencing the judge, pursuant to the power
granted under 18 U.S.C. § 4208(a), provided that Cain would
become eligible for immediate parole.
Cain was incarcerated from April 12, 1957 until October 29,
1969, approximately 12 1/2 years. On October 29, 1969, Cain was
released for a period of parole. The Certificate of Parole
specified that the termination date of the period of parole was
April 11, 1980, 23 years from the date the first sentence
Subsequently, the petitioner was charged with violating the
conditions of parole. On June 23, 1972, a revocation hearing was
held wherein Cain was charged with the possession of firearms on
three specific occasions. On October 15, 1971, and again on
October 28, 1971, guns allegedly were found by policemen in the
car in which Cain was driving. Cain denied these charges,
offering evidence to show that the automobile belonged to his
son. Further, the petitioner was arrested on March 28, 1971, for
allegedly carrying a concealed weapon and failing to register a
firearm. At the hearing, petitioner contended that since his life
had been threatened it was necessary for him to carry a concealed
weapon; both his brother and his wife corroborated this
testimony. Cain's parole was revoked on July 10, 1972, and he is
presently being detained in Cook County Jail. Cain filed the
instant petition on June 30, 1972.
In his petition, Cain contends (1) that the termination date of
his period of parole was erroneously set at April 11, 1980 (the
writ is "directed to the computation of time by the Department of
Parole and the power to return the defendant to Terre Haute
Penitentiary for a sentence already served and the illegality of
the detention of the defendant based thereon"), and (2) that the
revocation of his parole was arbitrary, capricious, and
In support of his first contention, Cain posits three possible
theories to explain the April 11, 1980, parole termination date,
rejects the first two as legally untenable, and relies on the
last to justify this petition for habeas corpus relief. This
third theory is that the 1980 termination date is simply an
error. Since the only period for which he was eligible for parole
was on the three-year sentence, Cain argues that his release on
parole must have been predicated on the official termination of
his obligation under the 20-year sentence. Therefore he submits
that he is liable only for the remainder of the three-year
In support of his second contention, that his parole revocation
was unreasonable, the petitioner asserts that the only evidence
offered was that of Cain and his counsel, showing that Cain was
not deserving of parole revocation.
Respondents argue that the 1980 parole termination is correct
since 18 U.S.C. § 4164 provides that a prisoner released on good
time shall be treated as if released on parole. In addition, they
assert that even if the release of Cain was in violation of
26 U.S.C. § 7237(d), the Parole
Board may recommit a prisoner who is released by mistake when his
sentence has not expired. With respect to petitioner's second
ground, the respondents argue that the Board's action was neither
arbitrary nor capricious.
DATE OF TERMINATION OF 20-YEAR SENTENCE
Under 26 U.S.C. § 7237(d), after conviction under federal
narcotics laws, no sentence shall be suspended and no probation
shall be granted; in addition, the statute providing for parole
shall not apply to those convicted under the narcotics laws.
Nevertheless, the federal law requiring mandatory release for
good time remains in effect with respect to narcotics offenders,
for 18 U.S.C. § 4164 contains the following relevant language:
A prisoner having served his term or terms less
good-time deductions shall, upon release, be deemed
as if released on parole. . . . (Emphasis added.)
The petitioner asserts that when he was paroled in 1969, he was
in fact paroled on his three-year sentence, although he admits
that he also qualified for release for good time on his 20-year
non-parolable sentence. Petitioner argues that since a
Certificate of Parole was issued this Court must recognize that
Cain's liability under the 20-year sentence had been terminated.
On the basis of this alleged termination, petitioner contends
that his detention under the 20-year sentence constitutes grounds
for habeas corpus relief.
The Court cannot accept this reasoning. The petitioner, who was
eligible for mandatory release on the narcotics offense, was
released on parole pursuant to 18 U.S.C. § 4208(a) on his
three-year sentence. The principle that one who is given
mandatory release is treated as if on parole, coupled with the
fact that the Board of Parole released the petitioner on the
three-year sentence on the basis of 18 U.S.C. § 4208(a) prevents
a conclusion that the release was in violation of 26 U.S.C. § 7237(d).
Cf. United States v. Figueroa, 325 F.2d 418 (2d Cir.
1963.) Yet, it is on the basis of the release on parole that
petitioner urges this Court to declare the 20-year sentence
satisfied and the detention under it illegal. The Court does not
find this persuasive; even if Cain's parole did violate 26 U.S.C. § 7237(d),
the Board of Parole can recommit a prisoner who is
released by mistake when his sentence has not expired. Cf. White
v. Pearlman, 42 F.2d 788 (10th Cir. 1930).
Peyton v. Rowe, 391 U.S. 54, 88 S.Ct. 1549, 20 L.Ed.2d 426
(1968) and Jones v. Cunningham, 371 U.S. 236, 83 S.Ct. 373, 9
L.Ed.2d 285 (1963), cited by the petitioner, indicate a trend to
enlarge the scope of the habeas corpus remedy. As a result,
prisoners who have been paroled and those serving consecutive
sentences, the first of which is valid, have been able to attack
custody by means of the writ of habeas corpus. The above cases do
not support the relief petitioner is seeking, however. A judicial
determination that the 20-year sentence has been satisfied would
amount to the reduction of Cain's sentence for violation of
federal narcotics laws. Petitioner has failed to cite any
authority which would give such a remedy to a federal prisoner on
the basis of the facts here alleged. Therefore, this Court will
not alter the 1980 termination date.
REVIEW OF REVOCATION OF PAROLE
It is clear that one whose parole has been revoked may
challenge the legality of the revocation by a writ of habeas
corpus. Washington v. Hagan, 287 F.2d 332 (3rd Cir. 1960), cert.
denied, 366 U.S. 970, 81 S.Ct. 1934, 6 L.Ed.2d 1259 (1961). The
scope of review in a habeas corpus proceeding was enunciated in
United States ex rel. De Fillo v. Fitzpatrick, 378 F.2d 85, 87
(2d Cir. 1967):
. . [T]he test is not whether there was
substantial evidence to support the Board's decision
revoking his release but whether, as a matter of law,
the revocation on its face appears to be without any
In the instant case, the petitioner was arrested on two occasions
when guns were discovered in the car in which he was driving. In
his defense the petitioner introduced only evidence showing that
the car belonged to his son. Cain attempted to justify his third
arrest for possessing firearms on the basis of necessity. He
freely admitted, however, that the Parole Board had recommended
that he move out of the neighborhood because of possible gang
harassment. In the light of these facts, the Court cannot state
as a matter of law that the action of the Board in revoking
Cain's parole was unfounded.
Accordingly, for the foregoing reasons, the petition for writ
of habeas corpus is denied.
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