United States District Court, Northern District of Illinois, E. D
May 21, 1973
RADAMES BURGOS, JR., PLAINTIFF,
UNITED STATES BOARD OF PAROLE ET AL., DEFENDANT.
The opinion of the court was delivered by: McGARR, District Judge.
MEMORANDUM OPINION AND ORDER
This is a petition for a declaratory judgment and temporary
restraining order brought by the plaintiff, Radames Burgos,
Jr., against the defendant, the United States Board of Parole.
The plaintiff, appearing pro se, alleges that 18 U.S.C. § 4164
is unconstitutional, that his "good time" allowance under
18 U.S.C. §§ 4161, 4162 is vested, and that he has been
given a mandatory release and as such is not subject to the
rules and regulations of the United States Board of Parole.
The plaintiff was sentenced on October 21, 1969, by the United
States District Court for the Northern District of Illinois to
five years on each of Counts I and II of an information
charging violation of 26 U.S.C. § 4704(a). The sentences
were to run concurrently. On October 26, 1972, the plaintiff
was paroled on mandatory release, pursuant to
18 U.S.C. §§ 4161, 4162, but refused to execute the mandatory
release agreement. Subsequently the plaintiff
filed this petition in the United States District Court for the
District of Columbia. A motion for a temporary restraining
order was denied. The defendant filed a motion to transfer this
action in accordance with 28 U.S.C. § 1404(a). The Court
transferred the action on December 13, 1972, to the United
States District Court for the Northern District of Illinois and
gave the defendant sixty days to respond to the petition. The
defendant has filed a motion to dismiss this action for a
declaratory judgment, pursuant to Rule 12(b)(6), or in the
alternative for a summary judgment, pursuant to Federal Rules
of Civil Procedure, Rule 56.
Eighteen U.S.C. § 4164 expressly provides that a "good
time" releasee shall "be deemed as if released on parole until
the expiration of the maximum term or terms for which he was
sentenced less one hundred and eighty days." Furthermore, the
law is well settled that the "good time" allowance does not
reduce the period of the original sentence, but instead
determines how much of the sentence must be spent within the
confines of prison, McKinney v. Taylor, 358 F.2d 689 (10th
Cir., 1966); Kelly v. Goodwyn, 239 F. Supp. 269 (E.D. Tex.,
1965), and that the releasee's serving of his sentence outside
of prison on "good time" release is not vested, but rather is
subject to forfeiture for his conduct before the full term of
the sentence has expired. Kelly v. Goodwyn, supra; Coronado
v. United States Board of Parole, 303 F. Supp. 399 (S.D.Tex.,
1969); Jones v. Moseley, 319 F. Supp. 455 (D.Kan.) aff'd.
434 F.2d 655 (10th Cir., 1970). Therefore, the plaintiff's
arguments that his "good time" release is vested and that he is
not subject to the rules and regulations of the United States
Board of Parole are clearly without merit.
The plaintiff also places significance on the fact that he did
not execute the Certificate of Mandatory Release so as to
voluntarily place himself under the supervision of the Board of
Parole. However, as the Court stated in Robinson v. Willingham,
369 F.2d 688, 689 (10th Cir., 1966):
Congress has fixed the conditions attached to a mandatory
release and those conditions are not effected by the releasee
signing or failing to sign a release agreement.
Accord, McMillan v. Parker, 254 F. Supp. 365 (M.D.Pa., 1966),
aff'd. 378 F.2d 444
(3d Cir., 1967); Hicks v. Reid, 90
U.S.App.D.C. 109, 194 F.2d 327, cert. denied, 344 U.S. 840
73 S.Ct. 51
, 97 L.Ed. 653 (1952); Weathers v. Willingham,
356 F.2d 421
(10th Cir., 1966).
The plaintiff also attacks the constitutionality of
18 U.S.C. § 4164, in effect maintaining that this provision
inflicts a "double punishment" and that it is an ex post
facto law, in contravention of the Fifth Amendment and Article
I, Section 9, respectively. The constitutionality of this
statute, however, has been consistently upheld. Desmond v.
United States Board of Parole, 397 F.2d 386 (1st Cir.) cert.
denied, 393 U.S. 919, 89 S.Ct. 249, 21 L.Ed.2d 206 (1968);
Masterson v. Lindsay, 219 F.2d 236 (4th Cir., 1955); Singleton
v. Looney, 218 F.2d 526 (10th Cir., 1955). As the Court states
in Desmond, 397 F.2d at 391:
. . [A]ppellant contends, since a mandatory releasee has
earned his right to walk out of prison, he cannot be
subjected to the conditions imposed on a parolee. Obviously,
however, this is precisely what Congress specified. We cannot
say that Congress, in affording prisoners relief from service
of time in prison, cannot impose conditions, subject to
reasonable rules and regulations, governing the continued
freedom from incarceration of a reliance.
This Court finds these decisions persuasive. The requirement of
Section 4164 that the plaintiff is subject to the supervision
of the Board of Parole does not exact a "double punishment" of
the plaintiff. Rather it merely determines the method by which
the single original sentence must be served.
Equally without validity is the plaintiff's assertion that
Section 4164 is an ex post facto law. The definition of an
ex post facto law includes "every law that changes the
punishment and inflicts a greater punishment, than the law
annexed to the crime when committed." Calder v. Bull, 3 Dall.
386, 390, 3 U.S. 386, 390, 1 L.Ed.2d 648 (1798). However, as
the defendant observed, the prohibition against ex post facto
laws is only relevant when the law is promulgated or changed
after a person has committed a crime. Graham v. Thompson,
246 F.2d 805 (10th Cir., 1957). There is absolutely no indication
in the instant case that Section 4164 was changed or
promulgated subsequent to the plaintiff's commission of the
aforementioned offenses. Therefore, the provision is not an ex
post facto law as to the plaintiff.
For the foregoing reasons, the plaintiff's allegations are
without merit and his petition for a declaratory judgment
should be dismissed. Accordingly, the defendant's motion under
Federal Rules of Civil Procedure 12(b)(6) for dismissal is
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