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Benjamin v. Hunter.

June 29, 1949

BENJAMIN
v.
HUNTER.



Phillips

Before PHILLIPS, Chief Judge, and BRATTON and MURRAH, Circuit Judges.

PHILLIPS, Chief Judge.

This is an appeal from an order dismissing an application for a writ of habeas corpus.

On June 27, 1943, Arthur Benjamin*fn1 was sentenced by an Army General Court Martial to 15 years' imprisonment upon conviction of violations of the Articles of War. He commenced service of the sentence on August 26, 1943, at the United States Penitentiary at McNeil Island, Washington. On August 8, 1944, all of the good time which he had earned and might earn in the future under 18 U.S.C.A. § 710 [now § 4161] was forfeited for the reason that he attempted to smuggle a contraband letter out of the institution.

On June 24, 1945, petitioner was transferred to the United States Penitentiary at Alcatraz, California, and on September 11, 1946, he was transferred to the United States Penitentiary at Leavenworth, Kansas.

On November 12, 1945, his sentence was reduced to eight years and on October 6, 1948, it was reduced to seven years.

On September 22, 1947, 450 days of the statutory good time which had been forfeited were restored by the Attorney General under 18 U.S.C.A. § 711 [now § 4166].

Prior to September 1, 1948, the effective date of 18 U.S.C.A. § 4161, good time earned and good time which might be earned in the future could be forfeited for violation of the rules of the penal institution.*fn2

Section 4161, supra, in part reads:

"Each prisoner convicted of an offense against the United States and confined in a penal or correctional institution for a definite term other than for life, whose record of conduct shows that he has faithfully observed all the rules and has not been subjected to punishment, shall be entitled to a deduction from the term of his sentence beginning with the day on which the sentence commences to run, to be credited as earned and computed monthly as follows: * * *

"Eight days for each month, if the sentence is not less than five years and less than ten years. * * *"*fn3

18 U.S.C.A. § 4165 reads:

"If during the term of imprisonment a prisoner commits any offense or violates the rules of the institution, all or any part of his earned good time may be forfeited."

The application for the writ was filed September 1, 1948. It was dismissed December 9, 1948. A motion for a rehearing was denied December 29, 1948. The prison officials at Leavenworth, in determining the release date for ...


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