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UNITED STATES EX REL. CALLENS v. BUONO

UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF NEW YORK


October 28, 1966

UNITED STATES of America ex rel. Paul CALLENS, Relator,
v.
Honorable Francis I. BUONO, Warden of New York City Correction Center for Men, Respondent

The opinion of the court was delivered by: WEINFELD

WEINFELD, District Judge.

 On August 27, 1963 petitioner was convicted upon his plea of guilty of attempted grand larceny in the second degree and sentenced to the New York Penitentiary for an indefinite term not to exceed three years. On August 25, 1964, after he had served approximately one year of this sentence, he was paroled. While on parole, on March 6, 1965, he was arrested on a charge of grand larceny, and a warrant for violation of parole was issued and lodged against him. On September 15, 1965 petitioner was convicted of the grand larceny charge upon his plea of guilty and sentenced as a second felony offender to a term of from one year and three months to one year and six months. He served this sentence at Sing Sing and upon his release on parole on July 1, 1966 was immediately taken into custody by the New York City Parole Commission under the warrant lodged against him on the parole violation of the 1963 sentence.

 This action of the Parole Commission in taking him into custody on July 1, 1966, petitioner contends, violated his federal constitutional rights. *fn1" While the claim is not clearly articulated, in substance he alleges a denial of due process under the Fourteenth Amendment. Petitioner in effect contends that during the period he was enlarged on parole he was serving his original sentence, and further that since he was thereafter in custody from the date of the issuance of the parole warrant, March 6, 1965, to July 1, 1966, the date of his release under the second sentence, he continued to serve his original sentence, and accordingly his original sentence has been fully served; that now to make him serve the unexpired portion of his first sentence is a denial of due process and constitutes double punishment for a single offense. *fn2"

 The state contends that the issuance of the warrant on March 6, 1965 "stopped" the time which petitioner was then serving; that he then owed one year and twenty-one days on the 1963 sentence, and that this time was in abeyance while he served the 1965 sentence.

 The petitioner's claim of violation of federally protected constitutional rights is without substance. A state, granting parole to a prisoner lawfully sentenced to a prison term, has the right to impose conditions of the parole, including a requirement that in the event of violation the parolee shall serve the balance of his original sentence independently of any sentence imposed for any intervening conviction. To require petitioner, who violated the conditions of his parole by committing another crime while enlarged, to serve the unexpired portion of his original sentence runs afoul of no federal constitutional right or prohibition. It certainly does not constitute cruel and unusual punishment, *fn3" nor is it a denial of due process *fn4" or double jeopardy. *fn5"

 The state's procedure here followed is constitutionally permissible to it, *fn6" as it is to the Federal Government. *fn7"

 The petition for a writ of habeas corpus is denied.


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