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Looney v. Lenz

: December 22, 1954.

C. H. LOONEY, WARDEN, UNITED STATES PENITENTIARY, LEAVENWORTH, KANSAS, APPELLANT,
v.
ELMER S. LENZ, APPELLEE.



Phillips

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

PHILLIPS, Chief Judge.

This is an appeal by Looney, Warden of the United States Penitentiary, at Leavenworth, Kansas, from an order releasing Lenz from custody of the Warden on a writ of habeas corpus.

Lenz was sentenced to confinement for a period of 4 years and 9 months, from October 15, 1945. He was released on parole June 28, 1947, with 1112 days of such sentence unserved.

While at large as a parolee, Lenz was convicted for another Federal offense and sentenced to a term of 4 years from April 19, 1948. A warrant for the arrest of Lenz as a parole violator was issued on March 2, 1948, and executed on March 7, 1950, on order of the United States Parole Board, to permit concurrent service of the 1112 days remaining of the 4-years and 9-months sentence with the 4-year sentence. After serving 287 days of the 1112 days, Lenz, on December 21, 1950, was released on re-parole under the 4-years and 9-months sentence. A total of 825 days of the 4-years and 9-months sentence then remained unserved.

Lenz, at the time the re-parole was granted, signed a certificate made a part of it, by which he agreed to the terms and conditions thereof.

While at large under the certificate of re-parole, Lenz was convicted of another Federal offense, and on February 4, 1952, was sentenced to serve 2 years and 2 days. During the service of that sentence, Lenz earned 144 days of statutory good time, 28 days of which were forfeited, and he, therefore, became eligible for conditional release on October 12, 1953.

While he was serving the 2-years and 2-days sentence, and on March 7, 1852, a warrant for his retaking was issued.*fn1

The 825 days (1112 days minus 287 days) was further reduced by 169 days, inasmuch as Lenz concurrently served as a parole violator from April 27, 1953, to October 12, 1953. Since the latter date he has been held only as a parole violator under the order of April 27, 1953.

18 U.S.C.A. § 4205 provides:

"A warrant for the retaking of any United States prisoner who has violated his parole, may be issued only by the Board of Parole or a member thereof and within the maximum term or terms for which he was sentenced. The unexpired term of imprisonment of any such prisoner shall begin to run from the date he is returned to the custody of to Attorney General under said warrant, and the time the prisoner was on parole shall not diminish the time he was sentenced to serve."

It is based on 18 U.S.C., 1940 ed., §§ 717 and 723c. Section 717 reads:

"If the warden of the prison or penitentiary from which said prisoner was paroled or said board of parole or any member thereof shall have reliable information that the prisoner has violated his parole, then said warden, at any time within the term or terms of the prisoner's sentence may issue his warrant to any officer hereinafter authorized to execute the same, for the retaking of such prisoner."

The question presented is whether the maximum term or terms ended 4 years and 9 months from October 15, 1945, that is, July 14, 1950, or whether it was extended by the interruption thereof during the times Lenz was at large on parole and re-parole and ...


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